Are We Family? And if so, Can I Still Sue You?

The right of parents to raise their child as they see fit has never been challenged in an Australian court. Family, as is often commented by many, is the cornerstone of our society. A good familial environment leads to the development of good citizens, who will hopefully join society and become valuable members. The methods and means which parents use in achieving this important social aim are generally left to their discretion. They have, almost, a carte blanche right to do what they believe is right for their child.[1]
In the early 20th century the Western Australian Government deprived Aboriginal parents of this right. Principally half-caste Aboriginal children were taken from their natural environments and placed in institutions and foster homes. Although the granting of this removal power (exercised under the various Aboriginal welfare statutes)[2] was well meaning in origin, it developed into a tool of biological engineering calculated to 'breed out' the Aboriginal race.[3] Aboriginal parents were deemed unfit and Aboriginal communities were seen as an inadequate and unsafe environment for raising children. In Western Australia many removed children were placed under the care of Sister Kate.[4]
The Children's Cottage Home (which later became Sister Kate's Home),[5] was one of the Homes and Missions who were responsible for raising many members of the now oft termed Stolen Generations. The stolen children have made claims against the Government for the removal policy.[6] The Children's Cottage Home however had no role in the decision to remove Aboriginal children from their families.[7] Sister Kate was responsible for how the children were raised which also entailed the amount of contact they had with natural family.[8]
It became a clear policy of Sister Kate and other administrative bodies, in some cases, to prevent any contact between the child and their natural family. This policy continued even after the Western Australian Government ceased its support.[9]
In recent submission papers by the Aboriginal Legal Service of Western Australia,[10] which are reiterated in the National Inquiry's Report,[11] many of the stolen children are now arguing that the psychological harm which has allegedly flowed from this decision is compensable at law.[12]
The unfortunate history surrounding the Stolen Generations has given rise to numerous causes of action, the most popular of which seems to be whether the treatment of the Stolen Generations could be a breach of a fiduciary duty owed by the relevant authorities.[13] I do not propose to add to the wealth of discussion on this point.[14] This paper will instead address the issue of whether The Home's treatment [15] of the Stolen Generations could be deemed negligent. It is beyond doubt that the many allegations of physical abuse would support an action in tort,[16] however it is not so clear whether the policy of depriving the children of any contact with their natural family is so readily actionable. It should be noted that both of these institutions are the same entity, except the name and administrative control for this institution changed over time. The existence of this institution is split into three time periods, the details of which will be discussed in detail in "Policies and Procedures of Sister Kate's".
This paper will argue that the Children's Cottage Home and Sister Kate's Children's Cottage Home performed the role of a parent [17] and are therefore afforded, in law, the position of standing in loco parentis.[18] It will then be argued that any legal ramifications that result should be determined by reference to the relationship of parent and child. A consequence of this relationship is that the law has shown a reluctance to second guess parental decisions and intervene in the private sphere. The significant issue which this paper will discuss is whether parents owe their child a duty of care and whether the law in Australia supports the notion of second guessing parental decisions?[19] It will be submitted that the law does not.[20] When a parent engages in parental conduct or decision making, the law provides immunity to the parent. Decisions aimed at the development of a child's beliefs and value system will not be questioned.[21]
There are certain areas of activity within the family sphere involving parental discipline, care, and control that should and must remain free from judicial intrusion. Parents should be free to determine how the physical, moral, emotional, and intellectual growth of their children can best be promoted. That is both their duty and their privilege. Indeed, every parent has a unique philosophy of the rearing of children. That philosophy is an outgrowth of the parent's own economic, cultural, ethical, and religious background, all of which affect that parent's judgment on how his or her children should be prepared for the responsibilities of adulthood.[22]

Structure of the Paper
This paper is in one sense an in depth problem question. As has been taught in law school, the student's mantra when approaching problem questions is to identify the issues, discuss the relevant law and apply the law to the given relevant facts. This paper is structured on a similar basis. The first two parts will provide the historical and factual background to the paper and will form the basis for applying the legal principles identified in the following parts.
"Social Policy and Legislative Framework" will discuss the legislative framework and the policies underlying the legislation which governed Western Australian Aboriginals from 1905 to 1972. "Policies and Procedures of Sister Kate's" will investigate the practices employed by the Homes [23] in raising children of the Stolen Generations.
"Hahn v Conley" introduces the legal analysis of the paper and is a detailed analysis of Barwick's CJ leading judgment from Hahn v Conley [1971] 126 CLR 276, which is Australia's only High Court decision on the issue of a parental duty of care. "Domestic v Parental Decisions" tracks the later development of Hahn and the interrelationship of important decisions from New Zealand and England are also discussed. I will extract from these decisions policy arguments which are implicit in the various judgments. These policy arguments will be supported by the analysis in Chapters Five which provides a review of significant American decisions.
"...the delicate nature of the task..." will explain how various courts have approached the question of whether foster homes can be regarded as standing in loco parentis. The final part will apply the identified legal principles to the Cottage Children's Home and Sister Kate's Children's Home. I will attempt to reach tentative conclusions as to how a court may and should approach the issue of whether this Home stood in a parental relationship and whether a duty of care existed. "Approaching the Questions" will provide a tentative answer to the question; 'Are we family? And if so, can I still sue you?'
Social Policy and Legislative Framework

Introduction
Western Australia's Aboriginal population has been the subject of severe legislative control. The legislation although intended to be protective was in fact highly destructive. One of the aims of this series of legislation was to destroy the natural bonds between parent and child and to create a new family. It was perceived by some that Aboriginal parents were not capable of discharging their social obligation of producing competent citizens. Parliament and particularly A.O. Neville, took it upon themselves to remove half caste children from their families and raise them in white ways.
The Perception of Parental Inadequacy
In the late 19th century Aboriginal people were perceived as vulnerable members of society requiring protection, which came in the form of special legislation.[24] In an attempt to protect Western Australia's Aboriginal population the Aboriginal Protection Act 1886 (WA) was passed. [25] This act established the Aboriginal Protection Board whose duties included the 'care, custody and education of Aboriginal children'.[26]
Despite this legislation Aboriginal parents retained their parental right to raise and educate their children as the Board did not have power to intervene in the family.[27] The first rumblings of a removal power arose with the first Chief Protector of Aborigines, Henry Prinsep. Prinsep advocated that Aboriginal people should be separated from white society and that Aboriginal children should be taken away from their families and placed into institutions where they could be raised to become useful members of society.
Prinsep's pleas for the necessary legislative power went unanswered and subsequently he instituted a programme of voluntary removal whereby he would persuade Aboriginal mothers to give up their children.[28] This policy was not very successful as 'the natural affections of the [Aboriginal] mothers... stood much in [the] way'.[29] The absence of a removal power indicated that in the eyes of the legislature Aboriginal parents if not capable (in the eyes of white society) were, at least, the appropriate people to raise their children.[30] However Prinsep's views regarding the more ideal situation represented the promise of what was to come.
The Social Problem
The 1904 Royal Commission chaired by Dr W.E. Roth discussed the administration of Aboriginal people and the 'half-caste' problem.[31] The removal power which developed from this commission was not solely intended to be a tool of social engineering. The original legislation did have a social problem to address. Most Aborigines were living and working in rural areas and due to their status within the white community their concerns were not given much credence. It was therefore not uncommon for the sexual exploitation of Aboriginal women to go unpunished. The 'half-caste children' that resulted were generally not cared for by their biological fathers and the Aboriginal mothers were normally unable to properly care for them due to their lack of resources.[32] Dr W.E. Roth observed that this was 'a most brutal and outrageous state of affairs' and recommended immediate legislation and strong supervision.[33]
The removal power therefore, in part, emerged from the perceived decadence of half-caste Aboriginal children. The problem was also due, in part, to the old adage of a child being a representation of their parent. The children were a problem because their parents were inadequate. Aboriginal parents were simply not doing their job in educating and looking after their children properly, which is evidenced by the following.
I think it is our duty not to allow these children, whose blood is half-British, to grow up as vagrants and outcasts, as their mothers are now. [34]
There is a large number of absolutely worthless black and half-castes about who grow up to lives of prostitution and idleness; they are a perfect nuisance; if they were taken away from their surroundings of temptation much good might be done with them. [35]
There is no power to do this now, consequently a half - caste who possesses few of the virtues and nearly all the vices of whites, grows up to be a mischievous and very immoral subject. This Bill will tend, in a great measure, to remedy this abuse. I may say it may appear to be a cruel thing to tear away an Aborigine child from its mother, but it is necessary in some cases to be cruel to be kind. [36]
It will be the factual foundation of this paper that the Children's Cottage Home then under the control of Sister Kate was intended to become the substitute family for the Stolen Generations. Sister Kate's [37] were intended to give them the guidance and treatment which their natural parents could not give them. Amongst Roth's recommendations was the observation that the Chief Protector should become the legal guardian of Aboriginal children up to the age of 18. The Commission and subsequently the legislature believed that the Government would not be doing its job if the children were left in their current surroundings and it became the view that it was in the child's best interests to be taken away from their family. The grief which their mothers would experience would be merely transient and they would 'forget their children in twenty four hours'.[38]
Legislative Intervention
The Aborigines Act 1905 (WA) was the legislative response to the Roth Commission. Under the Act the Chief Protector became the legal guardian of all Aboriginal children up to the age of 16 and had power to remove these children from their family.[39] It should be noted that this conflicted with the aims of the Children's Act 1907 (WA), which sought to provide for needy children without undue interference in familial relationships.[40] This inconsistency serves to strengthen the argument that Aboriginal families were perceived to be inadequate. Arguably Parliament did not see Aboriginals as being a family in a functional sense. The Aboriginal family was not producing competent citizens, and therefore there was no point in preserving this family. It was better to destroy the Aboriginal family and create a new one which would satisfy the social function of a family. Alternatively it may be argued that Parliament may have been trusting the Chief Protector to use the discretion wisely and within the spirit of the Children's Act.
The 1905 Aborigines Act gave the Chief Protector great powers. He became the legal guardian of all Aboriginal children up to the age of sixteen, the understanding being that he could remove all such children from their parents if they were found living in unsuitable conditions and place them in a mission or government institution [41]

Government Policy - Assimilation
Irrespective of Parliament's true intention behind this discretion afforded to the Chief Protector, it became a grey area. It was through this grey area that the assimilation policy could thrive and as will be shown, despite the more 'noble' origins of the removal policy, the social aim and the actual use of the power became diametrically opposed.
The removal policy originated out of the situation where a half-caste child was in a situation where they would not receive adequate care and support. Following the appointment of A.O. Neville as Chief Protector in 1915 [42] the focus of the removal power changed significantly. Neville was a strong advocate of an assimilation policy. He observed that two distinct types of Aboriginals were emerging; the full blood and half caste.[43]
Neville believed that the full blood was dying out and that the half caste was growing at a rapid rate. The half-caste was neither regarded as Aboriginal nor, in their present form, were they regarded as part of the white community. Neville resolved that the half-caste had to be absorbed into the white community if they were to function as a member of society. In contrast Neville believed that the full blooded Aboriginal should be segregated from the rest of society where they would eventually die off. The half-caste children should be removed from their families and placed into missions or institutions in an attempt to rid them of all Aboriginal traits.[44] They would then be raised in 'white ways' so they could enter general society and become useful members.[45]
Mr Neville holds the view that within one hundred years the pure black will be extinct. But the half-caste problem was increasing every year. Therefore their idea was to keep the pure blacks segregated and absorb the half-castes into the white population. Sixty years ago, he said, there were over 60,000 full blooded natives in Western Australia. Today there are only 20,000. In time there would be none. Perhaps it would take one hundred years, perhaps longer, but the race was dying. The pure-blooded Aboriginal was not a quick breeder. On the other hand the half-caste was. In Western Australia there were half-caste families of twenty and upwards. That showed the magnitude of the problem.
In order to secure this complete segregation of the children of pure blacks, and preventing them ever getting a taste of camp life, the children were left with their mothers until they were but two years old. After that they were taken from their mothers and reared in accordance with white ideas. [46]
Neville actively promoted the assimilation policy and argued for a model of biological absorption rather than segregation as he saw great advantages in 'miscegenation'.[47] Neville's plan however was not universally accepted with most opposition being to Neville's promotion of inter-racial marriages. Neville's assimilation policy was facilitated by a broad and unrestricted removal power.
The Minister may cause any native to be removed to and kept within the boundaries of a reserve, district, institution, or hospital, or to be removed from one reserve, district, institution, or hospital to another reserve, district, institution or hospital, and kept therein.[48]

Moseley Royal Commission
To institute this policy Neville required wider powers than those presently available under the 1905 Act. The Native Administration Act 1905-1936 (WA) eventually provided such empowerment.[49] The Moseley Royal Commission was held to review Neville's requests for greater powers. At this Royal Commission a submission by Mary Bennett expressed opposition to the removal policy. In her view the Western Australian Government had adopted an economically feasible policy rather than the best policy to remedy the social problem.[50]
If Aboriginal families were proving to be a problem then the Western Australian Government should render direct assistance in improving their conditions, rather than taking the children from their natural environment. It seems that the Western Australian Government was prepared to prune the branches in the hope of growing a better tree elsewhere rather than mending the tree already in existence. Despite Bennett's criticisms Moseley sympathised with the argument Neville presented and assented to the amendments.[51]
Conclusion
One can observe that the removal power was turned to serve a different purpose. Initially intended to remedy and assist Aboriginal children who could not be cared for, it became a tool of biological engineering and arguably became a weapon of genocide for which the full legal ramifications have yet to be truly realised.[52]
The comments of Neville and others reveal the perception that if the children were left in their natural environment they would not become useful members of society. The Western Australian Government took it upon itself to remedy the situation. The removal policy was essential for this purpose. The result was the creation of a new family in the foster homes. It may not have always been a loving and caring environment but then again what family always is? The homes were nonetheless, as the policy behind the legislation intended, a familial environment responsible for raising the stolen children. Their carers were entrusted with parental responsibility, and they had the difficult parental task of raising children. However to be a parent does not mean that all conduct is parental in nature. The following part will review what policies and procedures were adopted by the Home and whether, to be discussed in later parts, the Home engaged in the parenting function.
Policies and Procedures of Sister Kate's Children's Home

Introduction
The institution which became known as Sister Kate's has had a confusing existence. Sister Kate, an Anglican nun, after leaving another home called the Parkerville Children's Home, formed the institution called the Children's Cottage Home in 1933. Sister Kate operated this home until her death in 1946. From 1946 to 19 [56] the Home was operated under the authority of an administrative board. In 1948, the Home was renamed Sister Kate's Children's Home in memory of Sister Kate and in 1956 the administrators arranged for the Presbyterian Church to take control of the home.[53]
Sister Kate's Children's Home still functions today, but has undergone another administrative change and since 1988 Manguri's [54] operation has become the responsibility of a board of Aboriginal people.[55]
A failure to appreciate these discrete time periods can easily lead a person into grave error. As Whittington has observed,
The legal change of name... [from] the Children's Cottage Home to Sister Kate's Home took place in 1948 after her death as a memorial to her work. Those who loved Sister Kate feel this has allowed her name to be wrongfully defamed [and] besmirched through the actions of some of those who came after her.[56]
As the National Inquiry has revealed, most of the complaints in respect of this institution will arise out of these later periods. This is principally due to an issue of practicality as any potential plaintiff that belonged to Sister Kate's time are probably dead or otherwise there would be insufficient evidence to support an action.[57]
The most probable defendant will therefore be the Uniting Church, given the transient nature of the administrative board.[58] The decision to keep natural family away from the stolen children emanated from Sister Kate herself and became a strong policy for later controlling organisations.[59] This practice was essentially a further development of the Government's separation and assimilation policies. The close relationship between the Home and Government will have an important bearing upon how this decision is characterised.[60]
Legally the Home was under the Government's control but practically it operated as an independent organisation.[61] Therefore the responsibility for the consequences of this decision should rest with the relevant controlling body. To correctly characterise this decision it must be placed in its proper context. It is foolish and misleading to judge conduct without an understanding of the period.
The Community of the Sisters of the Church
Sister Kate belonged to a sisterhood called 'The Community of the Sisters of the Church' (CSC), or the 'Kilburn Sisterhood'. This order of Anglican nuns were formed in 1870 [62] and were specifically devoted to the education and care of children.[63] The CSC aimed to properly raise children in all facets like a natural parent.
...if the body of the child was to be made strong, its heart pure, and its mind one of unfolding beauty, then an environment must be created which would influence by every beautiful means the triune nature of the child.[64]
The Sisters of the Church were greatly influenced by Frobel [65] who believed that when caring for children we should create 'a sympathetic environment which young children could grow naturally and to their full potential.' Frobel formed the basis for Sister Kate's work. [66]
The Aims and Methods of Parkerville - Cottages
The Sisterhood soon sent some members to Western Australia to take up work there.[67] After some initial reluctance from Bishop Parry, Sister Kate eventually established a children's home.[68] The CSC purchased property in the Darling Ranges which became the venue for the Parkerville Children's Home. The aim of Parkerville was to care for a child's physical well being and to raise them into proper citizens.[69] The paramount concern of the CSC was that each child should be brought up in a loving and familial environment. The CSC endeavoured to give their children everything which other children received, such as a proper education and loving family.[70]
A very important method, introduced by Sister Kate, to achieve this familial atmosphere was the Cottage Home system.[71] Each cottage was meant to function as a little family in its own right and was staffed with a cottage mother and father.[72] An unusual feature for the time was the fact that a variety of children lived in each cottage. This, presumably, was part of the CSC's aim to imitate family life and have children of varying ages and sexes so as to mimic siblings.[73]
Leaving Parkerville
When Sister Kate reached the age of 70 Archbishop Le Fanu resolved that she should retire [74] however she was not willing to leave her position at Parkerville. It has been argued that Sister Kate's reluctance was due to her desire that Parkerville should remain under the CSC's control and not come under the Archbishop's jurisdiction.[75]
Sister Kate's refusal to accede to these requests should be regarded as an act of insubordination to a person in high authority. She once commented that she acknowledged only two authorities in this world, they being God and the children she cared for.[76] Archbishop Le Fanu [77] therefore was not part of her realm of authority.[78]
As history shows us however, Sister Kate was forcibly retired from Parkerville in 1933. Yet believing she had more to offer the children of Western Australia, Sister Kate set about finding a new vocation.[79] Sister Kate wrote to Paul Hasluck and he suggested that she become involved with Aboriginal children. The assimilation policy [80] required a place to put half caste children so that they could be properly raised. Given Sister Kate's relative expertise in raising children and her undoubted talent and resources [81] to get the job done, she seemed to be a perfect choice. Neville saw Sister Kate and the home she would operate as being a tool for assimilation. However this policy had little importance to Sister Kate. She would not be controlled and always did what she believed was best for her children irrespective of the consequences. Naturally this made the relationship between Neville and Sister Kate quite acrimonious at times.
The fact that the children were part-Aboriginal was of no relevance to her because she believed in the importance of socialisation rather than in hereditary traits. To Sister Kate the children were simply disadvantaged children.[82]

Conflict with Neville
There are numerous instances where Sister Kate openly clashed with Neville about financing, admission and the general operations of the Home. Sister Kate seemingly always adopted the view that this was a Home which she created and operated [83] so no one was going to dictate to her how they should be educated [84] and to whom the benefit of her home should be afforded.[85]
This association [with A.O. Neville] did not always run smoothly owing to bureaucratic intransigence and Sister Kate's resistance to the letter of the law when human need was required rather than the spirit of the law. Nevertheless it seems that Neville, regarding his own attitude as defensible and cooperative, lamented in the course of time what he interpreted as Sister Kate's refusal to be dictated to and to be restricted by bureaucracy...
...the real crux of their differences lay in the fact that he was adamant Sister Kate should not admit any child other than ones he sent - just as if he or the department owned the home - and demanded her obedience. Sister Kate's first concern was for any child - Aboriginal or white - in dire need of shelter and love, whereas Neville was bound by his budget. And of course she made nonsense of red tape. [86]
These conflicts demonstrate that despite the Home being under the Government's control, the policies and procedures adopted by the Home, were those that she chose to follow because they were in the child's best interests. Sister Kate would not allow her life's work to be compromised by the whims of Government.[87]
Administrator Control: 1946 to 1956
After Sister Kate's death, the Home was operated by a board of administrators.[88] There is little evidence about the policies and procedures adopted when the Home was under administrator control however Leaming's paper does cover the relevant time period. It explains that the subsequent controlling bodies followed the policy of preventing contact with natural family even though Government had relaxed its views on this issue. This departure from Government policy naturally became a source of conflict between the Home and the Native Welfare Department.[89]
Sister Kate's remained largely unaffected by these changes and the notion that children should be removed from the influence of their parents at all costs, and should be given the benefit of a decent up-bringing, remained the cornerstone of Sister Kate's Home.[90]
The administrators were apparently 'immovable' on the issue of parental contact. Arguably this shows that the decision was one of their own choosing and not one of being simply an extension of Governmental policy.
Thus Sister Kate's Home pursued its policies of social isolation and Christian training in the face of a changing society. For although the new administration brought improvement in the material well being of the children, they pursued policies originating in the 1930s when the separation of Aboriginal child and parent was sanctioned by Government and White society alike. These were policies based on the raw institutionalised racism of a White generation that saw Aborigines as a degraded, inferior and dwindling group of people to be controlled and guided... However Government policy had moved away from notions of crude absorption to one of cultural assimilation, a policy that at least in theory held notions of equality... this was a development in direct conflict with the aims of Sister Kate's Home.[91]
It is also arguable that the administrators followed the policy as simply being part of the well accepted blue print of procedures that Sister Kate had developed while the Home was under her control. The logic may have been that if the 'wheel isn't broken why fix it?' Sister Kate had created a system of child-raising which had been successful in producing capable and well adjusted children. Obviously the way she did things was the correct way to raise children. The possible legal consequences of this approach in arguably avoiding their parental responsibilities will be discussed in "Approaching the Questions".
Presbyterian Church Control: 1956 to 1988
The Presbyterian Church took control of Sister Kate's in 1956 although negotiations to arrange the transfer had been taking place since as early as 1951.[92] Although many of Leaming's comments about the operation of Sister Kate's are applicable to the period in which the Presbyterian Church was responsible, her comments cannot be consistently applied throughout the period of Presbyterian Church control.[93] This has led to a patchwork type historical analysis of the relevant period.
A Change of Policy and therefore Procedure?
The Uniting Church's submission [94] to the National Inquiry explained that there was little research material about Sister Kate's for this period.[95] The submission provides some evidence of the policies and procedures adopted by the Presbyterian Church with respect to Sister Kate's for the time period not covered by Leaming's paper. The evidence in the submission and the views of Leaming are inconsistent. The inconsistency is however reconcilable. Leaming's paper only covers up to 1964 which coincides with the formal end of the Government's separation policy represented by the Native Welfare Act 1963 (WA). This legislation repealed all previous legislation and abolished the Chief Protector's removal powers. Naturally Government's unwillingness to continue its official support for the removal policy would have some impact upon wider society and the operations of Sister Kate's.[96]
With the end of the removal policy, any perception that Aboriginal families were inadequate was weakened. Naturally this made it difficult for Sister Kate's to justify the continued application of their policy of no contact with natural family. The change in policy by Government seemed to promote the view that natural family must have some role to play in raising their children. Any necessary removals should take place under the criteria of the Child Welfare Act 1947 (WA) which normally justified the disruption of the family unit. As was stated in the submission;
...child care is a complicated, difficult profession and the policies associated with it are forever undergoing subtle changes as society changes... [97]
This change in perception necessarily meant that Sister Kate's would have to change any policy which, 'carte blanche', refused a child any contact with their natural family. As early as 1963 the National Missionary Council displayed quite 'enlightened' views regarding the role of Aboriginal culture in Australian society.[98]
These views flowed through to the policies adopted by Sister Kate's. The earliest evidence of Sister Kate's policies regarding their role with the children is given on the 18th June 1969. Effectively Sister Kate's saw themselves as an environment where they offered a substitute family, 'where affection and understanding, guidance and leadership will be available'. A child's needs would be assessed and judgments made on an individual basis.
...he or she should be given help suited to, and planned around, those needs and never compressed into the shape of inappropriate care simply because it is easily available.[99]
This policy arguably evidences that the Presbyterian Church took their its responsibilities quite seriously. The emphasis on assessing a child's needs implies that there were no longer any strict global policies regarding how a child should be raised. If a decision was made regarding the degree of contact a child should have with their natural family, it was on an individual basis. Effectively the Presbyterian Church determined what was best for the child and formed policies and procedures on that basis. The admission that decisions were made on an individual basis shows that the Presbyterian Church engaged in a delicate consideration of what was in a child's best interests. This delicate consideration shows conduct and decision-making which this paper argues should be given leniency when injury results from that function, on the grounds that is it parental in nature and purpose.[100]
Later on the 16th July 1974 the Church acknowledged that they were 'committed to a policy of preventative treatment'. If the Child Welfare Department saw it necessary to remove a child from their family then the Church should endeavour to minimise the time that the child and natural family were apart.[101] The Church developed a clear policy against long term institutional care, and separation from natural family. Yet where the circumstances demanded it these measures could be imposed. But such decisions were to be made on an individual basis and no general rules were to be blindly applied. This approach was confirmed in a document written by Leslie E. Smith entitled 'Blueprint for Methodist Homes for Children'. It stated;
...it is best for a child to be reared in his natural family , so long as it can meet his needs or be helped to do so... A child should be separated from his own parents only when circumstances, problems of parents, or problems of the child are such that, even with help, he cannot receive the care and treatment he needs while living in his own home or community... If a child must be cared for away from his natural family, the particular needs and problems of the child and his family, which may change from time to time, should be the basis for deciding what kind of care is most suitable... The ultimate goal of institutional care is for every child to return to family life in the community...[102]
Again the Presbyterian Church is demonstrating that it will determine the merits of any action in respect of a child, by considering their individual needs, much like a parent. Presumably any stance on a child's contact with their natural family would have been determined by what was most suitable to their situation.[103]
Conclusion
Now is not the time to conclusively determine the legal consequences of the respective policies or attempt to do so.[104] This part has focussed upon outlining the policies regarding the degree of contact with natural family. The following parts will now discuss how the law may treat the application of these policies. It will be argued that the controlling bodies stood in loco parentis [105] to the children and thus the legal consequences of these policies is an issue that must be determined by reference to this relationship. The following discussion will reveal that the proper and fundamental manner in which to determine whether a parent should be offered any leniency is whether they have engaged in conduct which is parental in nature and purpose.
Hahn v Conley

Introduction
Australian law, which is headed by Hahn v Conley, is universally opposed to the existence of a parental duty of care which springs from the relationship of parent and child. As has been noted,[106] it is surprising that a relationship that satisfies the elements of foreseeability and proximity, should not give rise to a duty. It appears that the policy issues have been decisive.[107] This does not mean that a parent enjoys complete immunity from civil action in Australia. What must be shown is that the circumstances of time and place justify the imposition of a duty of care. The duty turns upon the circumstances and whether they justify an otherwise 'unacceptable intrusion into... family and domestic relationships.'[108]
The principal submission of this paper is that the authorities are properly understood as showing that the law is incapable of reviewing parental decisions.[109] Although the authorities will have numerous policy arguments supporting them,[110] the better view, and the view taken throughout this paper, is that the law looks to the function that is performed by an individual, rather than the existence of any blood connection to the child.[111] Leniency is offered to those persons who engage in the delicate task of parenting thus making arguments about the preservation of familial harmony and the existence of an economic unit, secondary to this principal objective The mere fact that a parent makes a decision does not necessarily make that decision a parental decision. A parent must demonstrate that they have used skill and knowledge which is beyond the court's understanding and appropriate comprehension. A decision of this quality will show that they have engaged in the delicate task of parenting.
There is little Australian case law discussing whether a parent owes a child a duty of care. Most cases have dealt with a third party wishing to claim contribution from the parent for negligent supervision. It was therefore necessary to seek assistance from other jurisdictions to see how they approached the issue of a parental duty of care.[112]
A significant problem with Australian courts is that they fail to express the policy grounds they are relying upon when reaching their conclusion. Much therefore is left to implication and deduction. Authorities from other jurisdictions are valuable in clarifying what I believe to be implicit within most Australian authorities. This paper is not intended to be a comparative study. These authorities are used simply to clarify otherwise vague tests and reconcile apparently inconsistent decisions.
Overview of Policy Reasons: The 'Circumstantial Matrix'
Australian law is a complex web of judicial views, as Wright stated:
...it is true to say that when confronted by a question which raises difficult issues of policy, the judiciary will have recourse to different concepts through which they will seek to explain and justify a decision. The various arguments may seek to justify a decision without actually explaining it and different judges will utilise different concepts... [113]
The main policy grounds for not finding a parental duty of care have been:
- As the family is an economic unit, if a child is permitted to sue their parents it simply circulates funds within the unit. It either reduces the compensation otherwise available to the child, or it prejudices other children within the family.[114]
- The courts should not second guess parental decisions. The courts should not undermine parental authority and discretion.
- There is no objective standard against which to gauge parental conduct.[115]
- By not intervening in the familial field the courts preserve family harmony.[116]
These policy arguments are not common to all jurisdictions, yet they will impact upon a court's decision. As will be shown with Barwick's CJ test of circumstance,[117] it is arguable that these policies form a 'matrix' of circumstances which a court may consider when reaching their conclusion. Which flavour of reasoning adopted or the flavours held to be determinative (of the various policy arguments available under the Circumstantial Matrix), will have contrasting results. Despite the significance of such arguments, this paper will submit that the delicate nature of parenting is the universal policy ground upon which most of the authorities hold to be determinative. This therefore requires some definition of what this paper considers to be the parenting function.
Scope of the Parenting Function
The role of a parent is continuous and without limits. Once a child is born there is not a moment in the day in which you are not that child's parent. There is no sick leave, nor is there long service leave. The responsibility which is thrust upon and which a person assumes is immense. There is no right answer or set of rules to follow in raising a child. It is a task which is done by 'touch and feel'. You cannot be educated in the requirements of being at the beck and call of a child twenty four hours a day. This is why the law of negligence is reticent to intervene in the parental field. How can you criticise a person's methods when the only real education is through experience and experience necessarily means that mistakes will be made? Especially when we are told that the best learning is done through recognising one's mistakes. However parental responsibility is not a magic spell which can be spun around the law to avoid its consequences. The difficulty therefore is identifying what is parenting? What field of activity will the law second guess, and which field will it leave alone? Arguably the parental 'holy ground' could be anything that is connected with raising a child into adulthood. But if the field was defined as such it would be casting the net too wide. Because leniency is offered due to the difficult nature of parenting, those tasks or decisions which are not difficult should not be given leniency.
Parenting calls into play numerous tasks ranging from bathing a child to determining the degree of religious instruction they receive. Some decisions or conduct call into consideration views of the parent which are formed by personal belief, while others which are mechanical in nature and are shaped more by society's views as to what is appropriate. This latter types of decision lack the subjective, personal qualities of how a parent wants their child's beliefs and value structure to develop. These are everyday ordinary domestic decisions. Only those decisions or conduct which demonstrate a knowledge or belief system which are beyond the law's possible and appropriate comprehension are true parental decisions.[118] As will be shown, conduct or decisions which are parental in nature and purpose embody this principle.
Clearly there are things which the law knows. It knows abuse and intentional wrongs and there is authority which will hold a parent liable for such conduct.[119] Such conduct stands outside the parental sphere as it is not parental. It is not parental to intentionally abuse (physically or mentally) a child. Striking a child for the purposes of discipline is one thing, yet it is quite another to suggest that parenting extends to beating a child to a point where they suffer severe injuries.[120] Conduct and decisions of this nature are not parental as they serve no parental function. Children do not benefit from such abuse as it does not assist in bringing them to adulthood and forming their own beliefs and value systems. This is what parenting is about and what the law of negligence is aimed at preserving. As will be shown, negligent parenting does not provide a child with a cause of action, but negligence by a parent is completely different.
This brings out an important distinction to the factual question which this paper is to investigate. The deprivation of familial contact by the Home was, in hindsight, an incorrect decision. However res ipsa loquitor is not the universal rule in law. The fact that someone has been injured does not always mean that someone is legally responsible. If the Home's decision regarding familial contact could be characterised as abusive, then it is clearly not parental and arguably negligent. Yet if it is parental, it is, as this paper argues, not negligent.[121]
A Qualified Holy Ground?
The familial environment however is not a complete holy ground. An apparent inconsistency exists with authorities such as Smith v Leurs [122] and Home Office v Dorset Yaught Co.[123] These cases have held that a parent can be vicariously liable for the wrongs of their child. This paper contends that a child cannot sue for parental mistakes committed by a parent. It appears hypocritical to contend that liability can flow one way, yet not the other. The inconsistency, as I described, is only apparent. The first issue is that there is a clear distinction between a wrong and a mistake. The law accepts that mistakes will be made. As Andrews stated '[The law seems]... to be saying that no parent is perfect and allowance must be made for the fact that mistakes will be made in... home life.'[124] Similarly Abadee J stated;
[The law does not]... accept that when misfortune occurs someone is necessarily to blame, or that there is a legal responsibility in someone to pay compensation or damages.[125]
Alternatively every aspect of the parent/child relationship would be under scrutiny. Every bump scratch and or tear could produce a legal action. The law does not expect parents to be perfect and that is why this leniency is offered. Injuries and emotional difficulties which occur within this relationship are treated differently from those which extend beyond the relationship. Thus parents must be careful to ensure that their child does not injure another party and failure to do so may render parents liable in negligence.
Young [children]... despite their mischievous tendencies, cannot be classed as wild animals...in control of their children, parents must not omit to do that which a reasonable man... would do...[126]
This distinction has recently been explained in Kerr v Allen.[127] Being faced with an instance of vicarious liability for a child's torts AJ Donovan was presented with the authorities I am about to discuss, with their arguments on leniency, and he stated:
I consider that the 'parent cases', where it is the child who is suing or a third party seeking to join the parents, involve policy grounds for not finding a duty of care. This in my view is the true distinction.[128]
It may be true to say that a parent may commit mistakes that injure a child yet not be negligent, however if their mistake leads to a third party being injured, then they may be liable to the third party. By doing so we are not second-guessing parental decisions or compromising a parent's right to raise their child as they see fit. We are only expecting parents to be responsible for their child and to ensure that their child does not cause undue harm to others. It is now necessary to explain the law behind these views.
Hahn v Conley
Hahn v Conley [129] involved a young girl who was in the care of her grandparents. After the evening meal the child went outside looking for her grandfather and became distressed when she could not find him. Her grandfather heard her cries and from across the street called out to her 'I am over here' and returned to the conversation with his neighbour. The child proceeded to cross the street unattended and was hit by the defendant's car.[130] In an action for contribution, the defendant alleged that the grandfather's negligent supervision had contributed to the plaintiff's injuries. At trial it was held that the grandfather owed a duty of care by reason of the parental relationship and that he had breached that duty.
The Relationship Argument
On appeal to the High Court, the majority, headed by Barwick CJ stated that the relationship did not create the duty:
...in particular situations and because of the nature or elements, there will be a duty on the person into whose care the child has been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship... parents like strangers may become liable to the child if the child is led into danger by their actions. [131]

Barwick CJ adopted McCarthy's J approach from McCallion v Dodd.[132]
The occasions when a child can sue his parent in tort are the result of specific situations in which the parties find themselves... the relationship is not the foundation of the right of action
Barwick's CJ reluctance to impose a duty by reason of the relationship arguably signifies support for the more global policy that certain private sphere issues, namely parental decisions, are outside the law's consideration. The parent/child relationship clearly satisfies the requirements of foreseeability and proximity, however policy reasons have negated the otherwise valid operation of legal principle. As Simon Brown LJ has commented,
The ultimate issue is whether it is just and reasonable to impose a common-law duty of care in the circumstances...foreseeability of damage and proximity of relationship [are]... not in doubt.[133]
The 'Circumstantial Matrix' provides colour to the policy rationales for not imposing a duty of care. This paper argues that the law will not second-guess parental decisions. Barwick CJ supports this view by stating that 'the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected.' [134] Arguably 'moral duties' are purely parental duties [135] and conduct within this field will not be questioned.
Barwick CJ was equally clear that being a parent is not a 'get out of jail free card'.
...if there be a cause of action available to the child, the blood relationship of the defendant to the child will not constitute a bar to the maintenance by the child of the appropriate proceeding to enforce the cause of action. [136]
In stark contrast America developed the parental tort immunity doctrine to protect parenting discretion and preserve family harmony.[137] Australia has not followed a similar path despite earlier judicial comments to the contrary.[138] Australian law attempts to strike a balance between what is fair to the parent and what is fair to the child. Being a parent will not absolve you neither will it condemn you. A parent will only be legally responsible when the circumstances demand it.
'...like a stranger...'
The circumstances that create the duty however are not clear. Barwick CJ attempts to shed some light on this issue by likening the position of a parent to that of a stranger. When a child is led into danger by the parent's conduct then like a stranger the parent will be expected to act reasonably. They have stepped outside the realm of the private sphere and into the public sphere where they will be required to abide by what the community deems to be reasonable behaviour.
This signifies a circumstance in which the law has expertise and not a parental field where the law has no experience. The law is premised on the ideal that parents should have discretion in determining how their children are raised. Australian law, through Barwick's CJ test of 'appropriate circumstances', tries to draw a line between conduct that is parental and that which the law is capable of reviewing.
Applying the Test of Circumstance
The issue for Barwick CJ was whether the current circumstances created a duty of care. He believed a duty did not arise even though the lower courts had interpreted the grandfather's statement as an assumption of responsibility.[139] It was argued that the appellant's conduct actually encouraged the child to come across the road and thus by leading the child into danger he assumed a duty to take care. Barwick CJ differed in this interpretation of the facts and held that the appellant's response was not intended to be a request to come to him nor would a reasonable person believe that the grandfather intended so.[140] The response was merely one of reassurance and as such did not create a duty.[141]
Supervision being Parental in Nature and Purpose
Such an analysis seems 'novel' but the analysis may be indicative of a deeper issue. American law and later Australian authorities have held that the level of supervision a child receives is an act of parental discretion.[142] To review 'supervisory decisions' would place 'a fetter upon parental judgment and discretion'[143] which it is hesitant to do. This different factual analysis arguably reveals a view that 'supervisory decisions' are prima facie parental in nature and purpose and therefore stand outside the law's consideration.
Conclusion
Hahn v Conley left Australian jurisprudence with a test for a parental duty of care, even though a quite vague one. The court was to look at the circumstances and whether it was appropriate to impose a duty of care. If the child was led into danger then the parent was deemed to have assumed responsibility for the child. Later cases have concentrated upon this analogy between a stranger and a parent and whether the parent's actions have placed the child in danger
Domestic v Parental Decisions

Introduction
The later applications and interpretations of the test of circumstance have at times been inaccurate. Many authorities, erroneously, seek to narrow this broad test to simply being a question of whether the child was led into danger. These same authorities however introduce terms such as 'ordinary domestic decision' and 'common-place domestic situation', which indicate a line of thought on the judiciary's part. These terms encompass a sphere of activity which is wider than the notion of parenting defined in this paper. Australian law is unclear as to which sphere the leniency attaches itself. Some authorities suggest that leniency is offered to a discrete area of conduct or decision making, appropriately described as being parental. Others, however, are suggestive of a wider sphere which implies that all domestic conduct and decision making is immune.
Posthuma v Campbell
As with Hahn, Posthuma v Campbell [144] dealt with the ability of the court to review a supervisory decision. The plaintiff's face was severely injured when his grandparents' dog attacked him. The plaintiff sued his grandparents for damages under the Dog Control Act 1979 (SA). The grandparents sought to join the plaintiff's mother as a third party arguing that the mother's supervision of the plaintiff, while there was a dog in the vicinity, led the child into danger.[145]
Applying the Test
As with Barwick CJ, Jacobs J adopted an interesting factual analysis very favourable to the plaintiff's mother.
It may well be foreseeable, as a possibility, that a dog, any dog, may react adversely to the presence of a young child; but to place a parent under a general duty, as parent, to guard the child from that risk would, in my judgment, be an unwarranted intrusion of the law into family and domestic relationships...In the common place domestic situation... she could scarcely be expected to tie the child to her apron strings and keep him out of sight and reach of the dog at all times. [146]
Two points may be noted from Jacobs' J statement. If it is quite well known that a dog, any dog, may react adversely to the presence of a child, then why was this situation not regarded as one creating a duty? Surely the child was in danger if there was a dog in the vicinity.
Domestic Situation - Parental Nature of Supervision
Secondly if this was the case why was a duty not found? Reliance can be placed upon the words 'in the common place domestic situation'. Jacobs J introduces a term which is of some significance. What is a domestic situation, and why should the law treat these situations differently?[147]
This observation is related to a point discussed above. The degree of supervision offered by a parent is an exercise of parental discretion, which prima facie the law will not question. As has been stated in an American court,
Supervision is uniquely a matter for the exercise of judgement. For this reason parents have always had the right to determine how much independence, supervision and control a child should have....[148]

Supervision is a parental decision involving the exercise of judgment in response to variables which the court cannot understand.[149]
It would impose a fetter on parental judgment and discretion...Some parents might choose to be highly protective, others might accept that their children will get hurt, or hurt themselves, as a necessary part of the child's development. [150]

Holding
Posthuma suggests that the law cannot fully regulate the parental relationship and necessarily some aspects of the relationship stand outside of legal consideration. On a global view it seems to state that supervision is inherently a parental decision, however this is simply a general rule. If there are other circumstances, such as strong physical danger, which override this prima facie concern then the fact that this is an act of supervision will be null and void. Although the supervision offered may have familial purposes, its nature is changed by the close and strong physical danger. The conduct moves from a purely parental field into an area which the law is able to determine what is reasonable conduct. Also Jacobs J introduction of the term domestic situation or decision is interesting which Robertson v Swincer further develops.
Robertson v Swincer
In Robertson v Swincer [151] the plaintiff was injured when he walked onto the road unsupervised and was hit by the defendant's car. The defendant argued that he was entitled to contribution from the plaintiff's parents on account of their negligent supervision.
Does a Duty only arise from Positive Action?
King CJ applied what he believed to be the legal test emanating from the above authorities. Parents would only be liable if they had done something to lead the child into danger. As the parents had done nothing to endanger the child a duty should not be imposed.
...a duty of care to protect a child from harm may arise... [when the person] has acted in relation to the child in such a way as to create a foreseeable risk of harm apart from that action would not have existed...
...The respondents did not take the plaintiff onto the road or do anything which might entice him into a situation of danger. They were engaged in the ordinary social activity of visiting friends with their family and of farewelling those friends at the conclusion of the visit.
Their fault... was an omission occurring in the ordinary course of discharging their responsibility for the care and supervision of the child...[152]
King CJ proposes that a parent will only have a duty imposed upon them when they have done some positive act to endanger the child. Two points arise:
- A duty cannot arise from misfeasance,
- A duty can only arise when the child is placed in danger.
With respect this is incorrect. Despite his assertions of following Hahn and apparently applying Barwick's CJ test of circumstance, King's CJ test is quite different. Barwick CJ stated that in particular situations and because of their nature or elements, there will be a duty. [153]
The duty arises because of the 'nature or elements' in the surrounding circumstances. Positive action in leading the child into danger is simply one example of a circumstance whose nature or elements warrant imposing a duty of care. Barwick's CJ test contemplates that a duty can arise from a parent's omission. Similar views were expressed by Nader J in Anderson v Smith. He observed that Barwick's CJ analogy with strangers had created an interpretative flavour that the parent must do something to endanger the child. Nader J disapproved of this view as being an 'over narrow reading of the cases as I understand them'.[154]
...it is reading too much into his reasons to draw from the expression 'led into danger' that a person standing in loco parentis to a child can only be liable in negligence to the child if he actively leads the child into danger. In appropriate circumstances, a person who happens to stand to a child in loco parentis can surely be liable to that child for injury caused by omission. [155]

Understanding the Analogy
Barwick CJ implicitly believed that only in the most exceptional circumstances could the law intervene in what is essentially a moral obligation. Barwick CJ likened these exceptional circumstances to the situation where the law compels people to rescue others, generally a situation also governed by moral obligation. The law respects a person's liberty and their right not to act unless the person has created the risk of harm.[156] Similarly the law respects the parents' right to raise their child as they see fit, yet this respect or immunity is dissolved in certain circumstances such as when a child is endangered. The parental right is lost because these are circumstances where there is overt danger, and the courts are able to determine what is appropriate behaviour.
Policy Grounds for Robertson
This problem with Robertson does not mean that it is of no authoritative use. When on application for special leave to appeal to the High Court Mason CJ stated that there was not sufficient doubt over the decision's correctness [157] to warrant a grant of special leave.[158] This suggests that the policy grounds expressed by the court in coming to their conclusion may, on their own, support the court's decision.[159]
Supervision: Solely a Parental Responsibility?
As with Jacobs J, King's CJ comment that the conduct was an omission that occurred in the 'ordinary course of discharging their responsibilities' assumes significance. Like Barwick CJ this suggests the existence of a boundary or inner core of decision-making/conduct which a court will not question. King's CJ opposition implies that the law is being asked to go further than it properly should. It is now being asked to review a decision made in the ordinary course of parenting.
...most parents...would regard themselves as under a moral obligation to take care to protect their child from harm. The question... is whether the law in such circumstances imposes a duty...[160]
The words 'in such circumstances' arguably means those circumstances which are normally motivated by moral obligation. This arguably is the realm of the parental decision. Should the law intervene in this field and furthermore is this a field in which the law is capable of intervening? King CJ answered these questions:
The moral duty which rests upon parents and those acting in their place continues during every moment from the time during which the child is in their care. If that is to be converted into a legal duty it must be recognised that departure at some time from the standard of reasonable care... is almost inevitable. There are moreover no readily recognisable standards for parental supervision as there are for specific activities such as driving a motor car. Parents differ as widely as human beings themselves in temperament and personality. Some are less alert and prudent than others and they may differ widely in their parenting capacities and views as to what is required.[161]
The biggest hurdle for a court is that 'parents differ as widely as human beings themselves.' What one parent may consider essential to a child's development, another may not consider at all. Does this mean that the omission is negligent? The authorities clearly state the negative. Parents engaging in the delicate task of parenting will not be second-guessed. This is principally because the courts are not able to determine the reasonableness of parental conduct as 'there are... no readily recognisable standards for parental supervision as there are for specific activities as driving a motor car.'
Similar opinions have been expressed in other jurisdictions;
The studied calm of the Royal Courts of Justice... is light years away from the circumstances prevailing in the average home... We should be slow to characterise as negligent the care which ordinary loving and careful mothers are able to give to individual children, given the rough-and-tumble of home life [162]
...the law's external coercive incentives are inappropriate to assuring performance of the subtle and shifting obligations of family.[163]

No recognised Standard of Care
Because there is no readily recognisable standard of care parental conduct is immune from the court's scrutiny.[164] As Jacobs J commented he saw the problem as being that the courts would be searching for an 'imaginary norm'.[165] The problem is expressed more clearly in American decisions.
Considering the different economic, educational, cultural, ethnic and religious backgrounds which must prevail, there are so many combinations and permutations of parent - child relationships that may result that the search for a standard would necessarily be in vain - and properly so.[166]
Our geography, our population, and most importantly the diversity in our religious ethnic and cultural backgrounds make a common standard inapplicable...To suggest that a... jury should judge the parent on the basis of some common standard is... nothing short of impossible.[167]
Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor provides a good discussion of the ability of policy to negate the otherwise valid operation of legal principle.
In Australia, policy reasons have been held to deny the existence of a duty of care at common law even where proximity and foreseeability are both present... 'reasonable foreseeability on its own indicates no more than that such a duty will exist if and to the extent that, it is not precluded or modified by some applicable overriding requirement or limitation'. The policy of the law may impose a limitation in particular circumstances or in classes of case to limit or confine the existence of a duty to take care. In the end ... policy considerations will set the outer limits of the tort... In Gala v Preston... it was held that no duty was owed, apparently, at least on the part of some members of the High Court, for public policy reasons.167(a)
Some Justices in Gala v Preston [168] accepted that the inability and inappropriateness in attempting to form a standard to determine the reasonableness of a defendant's conduct is a sound policy reason for not finding a duty of care.[169] This policy argument is applicable to the current context. The courts are not skilled in reviewing parental decisions as they are not parents of those particular children and this is not a problem that can be solved by expert evidence. As was stated 'Parents differ as widely as human beings themselves in temperament and personality'.169(a) Thus each parent/child relationship is different and the only expert on that specific child is the parent themself. When they act within their parenting field, or field of expertise, their conduct cannot be questioned. It is only when the parent steps outside the boundaries of their parenting field can the law review the parent's conduct.
Inappropriate for Judicial Review: Freedom of and from Religion
The reluctance of the courts to intervene in this area is indicative of a deeper social issue. If it is accepted that the law represents the dominant paradigm and that the concept of reasonableness, being a matrix of beliefs and values (which include religious ones), will be imposed upon others. The dominant religious views will flow through the requirement of reasonableness and may create a situation of the State, or at least judicial law, imposing a set of religious values upon the wider community.
Religious freedom is a fundamental part of our society and this situation cannot be allowed to eventuate or even be possible. One of the many ways religious freedom is achieved is by allowing parents to raise their children in the manner they see fit.[170] Therefore a wider social purpose of religious freedom is also served by this familial immunity. It should be noted, however that this has not stopped many American courts from removing their parental immunity doctrine and using a reasonable parent standard.[171]
The Inability to Review Parental Decisions
A principle that may be drawn from Robertson and other cases is that decisions of an ordinary domestic nature will not be reviewed by the courts as these are areas in which the law should not intervene.[172] This begs the question of what do the courts mean by an ordinary domestic decision? Are they decisions connected to family life or is it narrower and looks to conduct that is properly termed a parental decision as they are connected to raising children? The factual circumstances of both Posthuma and Robertson suggest that the term may be synonymous with parental decisions as supervision is generally parental in nature and purpose.
This is merely 'prima facie' as the qualities of being parental in nature and purpose are not a product of automatic presumption as the facts must lend themselves to such an interpretation. For example if the child is put in danger or the parent's actions move beyond their child rearing qualities, the law will intervene.
This analysis that ordinary domestic decisions are parental decisions is disturbed by Towart v Adler. This case suggests that there are two spheres of activity which the law may be considering.
The Protected Conduct Broadens
In Towart the domestic decision of opening a window which led to a child suffering injuries was considered. The Towart family were on holiday and staying at a holiday house. The children stayed in a room with a bunk bed. Due to the risk of her falling the plaintiff had been told she could not go on the top bunk. After going to the beach Mr Towart opened the window in the children's room to allow the sea breeze to come through. The plaintiff climbed onto the top bunk and fell through the window sustaining injuries. The owners sought to join Mr Towart as a third party. Recovery from him turned upon the issue of whether he had been negligent in opening the window to allow the sea breeze through. Reliance was placed upon the fact that Mr Towart's action of opening the window had led the plaintiff into danger and therefore a duty existed.
King's CJ response to this argument was two fold. As Mr Towart was a stranger to the premises he did not appreciate the risk such conduct presented. This seems a tenuous argument as any parent should be aware that a bed on the same level of an open window is an accident waiting to happen. The more convincing reason given was that the opening of the window was an ordinary domestic decision. In King's CJ view it was a practical necessity to ensure proper ventilation on a hot night.
This was not the case of exposing a child to the dangers of the highway. The opening of the window was an ordinary domestic incident. I think that to treat so common an incident as the occasion for a legal duty of care in supervision would 'be an unwarranted intrusion of the law into family and domestic relationships'. [173]

Something Different?
This holding disturbs the consistency between the terms parental decision and ordinary domestic decision. Given the above authorities' exploration of the term domestic, the nature of the conduct presented in Towart is significantly different. Upon these facts the term domestic embraces a wider sphere of conduct. The decision to leave a window open does not possess any child developing qualities and is not parental. Apparently an ordinary domestic decision embraces both the mechanical decisions associated with family life and the more intimate decisions of a child's personal development.
The law should not offer a parent complete immunity on grounds that the decision was an ordinary domestic decision as mechanical decisions do not possess any parental qualities and do not come within the policy rationale for leniency. The boundaries which the law should draw are evident in Bye v Bates and Anderson v Smith.
The Boundaries Narrowed
Two families owned neighbouring farming properties and like most neighbourhoods the children from the respective families would play with each other. An arrangement existed that the children would always be properly supervised. While under the care of one parent, one of the neighbour's children played with an electrical device called a vaporiser. The vaporiser had an exposed live wire and the plaintiff was severely burnt. The parent responsible for supervising the pair had told them to return home but failed to make sure that the plaintiff and his brother had left the premises as he was preoccupied with doing the shopping.
Supervision: The Parental Presumption Rebutted
O'Loughlin J held that the defendant owed a duty of care in the circumstances and that he had breached that duty.[174] Given the circumstances that there were electrical appliances and the fact that these were young inquisitive children, he should have known that this was a recipe for disaster. The defendant should have ensured that the plaintiff and his brother had actually left the premises before leaving himself.
...his failure to see that the children had actually set off for the Bye's house is not to be taken in isolation; for it must be considered in conjunction with the presence of the electrical appliances on the verandah, his knowledge of their presence and the obligation on his part to recognise that the children would have, or might have, seen the appliances.[175]
This seems anomalous considering that this was a case of inadequate supervision. Furthermore it is difficult to reconcile O'Loughlin's J judgement given his support of providing leniency to parents.
It is important... to avoid being overly protective of children; and of course it is quite wrong to work backwards, assuming tortious conduct because a child has been injured...[176]
It is submitted that the defendant's decision regarding the plaintiff's supervision, although parental in nature, was not parental in purpose. It was not a conscious decision about entrusting a child with the use of a dangerous instrument. The parent's decision was one of convenience and carelessness, and not about the plaintiff's development. It was not difficult to actually ensure that the children had left the premises.
Domestic Conduct should not be Immune
The quality of a task being simple was a factor in Bedlam's LJ dissent in Surtees v Kingston-Upon-Thames Borough Council; Surtees v Hughes and another.[177] The plaintiff was in a foster care arrangement and sued the defendants, and the relevant local authority, in negligence. The plaintiff had been left in a bath by herself while her foster-mother attended other matters. Somehow the hot water tap was turned on and the plaintiff suffered severe injuries. It was argued that the foster mother was negligent in leaving the plaintiff alone, as children and water are circumstances of obvious risk. Bedlam LJ applied a rationale similar to the underlying policy I have discussed.
...though Mrs H was going about normal household duties... The accident... arose... from a momentary failure to give thought to an obvious risk when the step needed to obviate it was simple. I can see no warrant for saying that to impose a duty of care in such circumstances would impose an impossibly high standard, any more than it would in the case of a child left where it could gain access to saucepans on a stove or to a kettle. [178]
Bedlam LJ suggests that showing the decision is 'an ordinary domestic decision', as in Towart, does not determine the issue. This exemplifies a distinction between the concepts of domestic and parental decisions. The former encapsulates decisions related to family life which are also mechanical or simple in nature. These are decisions which any person can comprehend and are not parental in nature and purpose. A similar point was alluded to by Andrews where she commented that the law in this area is focussed upon protecting the child and the right of a parent to raise their child as they see fit.[179] This necessarily means that a balance has to be struck. Some injuries will be actionable and others will not. If one accepts that the principal policy argument is to protect a parent's child raising prerogatives, then when the conduct does not contain any element of this policy they should be held liable.
...a parent's conduct in leaving a young child alone with a dangerous instrumentality can be distinguished from a parent's choices regarding the amount of supervision which will best develop a child's individuality and self reliance. [180]

Conduct must be Parental in Nature and Purpose
Bedlam's LJ holding suggests that not all decisions about a child's supervision will be immune. Implicitly this means that the supervision must have some 'self forming qualities'. Although the conduct is parental in nature, it must be parental in purpose. Some supervisory decisions are merely mechanical decision whereas others are not. In both Surtees and Bates, one can observe that the parent's conduct was not truly parental. The parent was careless and this carelessness produced harm for which they are liable. If the parent's conduct demonstrated that this was related to properly raising their child, then leniency may have been given. Conversely Robertson and Posthuma dealt with cases of parental supervision and these decisions must be seen as being parental in nature and purpose.[181]
Alternatively it could be argued that these decisions support the true domestic decision principle, and that conduct need only be domestic rather than parental. I prefer the implicit views of O'Loughlin J and Bedlam LJ which are consistent with the policy argument that leniency is awarded for parenting rather than for the familial environment generally.[182]
It should be noted that the above decisions can be justified by relying upon other limbs of the 'Circumstantial Matrix'. A factor which can be used to reconcile these cases is the preservation of family harmony. In both Robertson and Posthuma the child was part of a loving family. By definition their injuries were to be compensated and cared for in any event. However in Surtees the situation was different. The child was arguably not part of a loving family as the foster parents were considering giving up the child.[183] The existence of a loving family argues against the law's intervention.
...actions by children against their parents... [are unlikely to] further either of these aims [deterrence against careless behaviour and fair distribution of the loss]...most parents are motivated to care for their offspring by natural feelings of love and affections and by social conditioning. It is difficult to see how any deterrent function could have more than a minimal effect in this context. Indeed the spectre of legal action, may have a detrimental effect on the quality of parenting and lead to unnecessary mollycoddling of children.[184]
This is simply one factor and case law on this topic is riddled with inconsistencies. A case can turn upon any factor or element of the 'Circumstantial Matrix' which the court considers important. The majority in Surtees followed an approach analogous to the one shown in Towart. As it was an ordinary domestic incident, and even though not parental, the court could not review the issue.[185] Stocker LJ considered important the fact that this was an incident which occurred in the course of daily domestic routine.[186] Similarly Sir Nicolas Browne-Wilkinson VC stated:
The responsibilities of a parent... looking after one or more children, in addition to the myriad other duties which fall on the parent at home, far exceed those of other members of society... We should be slow to characterise as negligent the care which ordinary loving and careful mothers are able to give to individual children, given the rough-and-tumble of home life [187]
The majority emphasised the 'myriad of other duties which fall [onto a] parent at home'. The familial environment, as opposed to the difficult nature of child raising, provided the majority with the basis for their respective decisions. This demonstrates a reluctance by some members of the judiciary to intervene even in domestic matters.
Parenting: The Boundary of Physical Harm
Some Australian case law provides content as to the proper boundaries of the parental sphere. If the decision exposes the child to physical harm the court will intervene because exposing a child to severe risks is not a normal part of raising a child. Some dangers are incident and related to this function, but others are so foreign that the conduct creating such risks cannot be seen as being parental in nature or purpose. For example in McCallion v Dodd the child was made to walk along a highway with his father. The circumstance of being on a highway and close to extreme physical danger made the parent's decision justiciable.[188] Similarly in Bye v Bates the plaintiff's injuries were described as 'shocking and disfiguring', thus making the severity of the potential injuries a factor in determining what is properly seen as parenting.
It is equally arguable that the parent's oversight in Robertson and Posthuma exposed their child to severe danger and thus a duty should follow. Yet any apparent inconsistency on the basis of this argument is easily reconciled. In Posthuma Jacobs' J factual analysis held that a dog is not necessarily a dangerous animal, thus there was not necessarily any risk at all. However with Robertson, the authority of McCallion suggests that the parent was negligent. Both cases dealt with a parent's failure to properly supervise a child while near a roadway. McCallion suggests that injury in such circumstances is negligent and a duty should follow.[189] The cases are, however, factually distinct. In McCallion the parent made the child walk along the highway, while in Robertson the child slipped past his parents to play on the front lawn. One involved a deliberate assumption of responsibility, while the other was a 'momentary oversight'.[190] Thus the circumstances in which the risk arises will be material. The nature or severity of the risk are not determinative. The parental boundary being affected by the degree of physical danger is also evident in Anderson v Smith.
Anderson v Smith
Anderson involved a supervisory decision which is a prima facie parental decision. Despite this Nader J eventually held that the grandmother, standing in loco parentis, was negligent. The plaintiff left her child in the defendant's care. The grandparent's home had a pool, which although was properly fenced, could be accessed through the back door. If secured the door would prevent a child from going to the pool unattended, but failure to do so would expose a child to grave danger. By mere oversight the grandmother failed to close the back door and the child fell into the pool and sustained injuries from which she eventually died.
The Nature of the risk not related to Child Rearing
One could see Anderson as being analogous to Towart. If the domestic decision approach was followed the defendant would have been absolved as presumably there is no difference between leaving a window open and leaving a door open. However Nader's J decision supports the view that leniency applies only too parental decisions. Failure to lock a door in this instance was not parental because it was not a conscious parental decision. As with Bates and Surtees, it was careless conduct and not part of a parent's function in raising a child. Nader J noted that the dangerous mix of children and water is well documented.[191] As there was a pool behind the back door, which is a source of high danger, the conduct was not parental as the risk, presented in circumstances of carelessness and inattention, deprived the incident of being parental.
Similarly in Bye v Bates the risk of severe injury through the parent's failure was not an ordinary part of child rearing. Life threatening situations are not normally part of parenting and such situations do not normally form part of the policy rational for immunity. It is arguable therefore that the nature of the risk which the pool presented in Anderson also prevented the grandmother's conduct from being parental.
Parental and Domestic Decisions - An Unresolved Division
The distinction between parental and domestic decisions is unresolved and the boundary of parental purposes is still unclear. The recent case of Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [192] promised to provide such clarification as it is the first Australian judicial exploration into the issue of whether a child can sue parents for negligent upbringing. In Williams the plaintiff's mother placed her into the Aborigines Welfare Board's custody where she was raised in various institutions. The plaintiff alleged that the Department was negligent in failing to ensure that she would be provided a parental substitute with whom she could form a maternal connection while growing up.
Exclusively relying upon Hahn v Conley, Abadee J stated that;
At common law, no action lies for, in effect, 'bad parenting' or 'bad upbringing', at least by natural parents... Thus for example, had the plaintiff stayed with her mother, and developed a disorder of the type alleged, it would appear that the plaintiff could not have sued her mother.[193]
Abadee's J interpretation of Barwick's CJ statement is interesting.[194] Abadee J did not discuss any of the other authorities mentioned in this paper and therefore did not shed any further light upon the ordinary domestic and parental decision dichotomy that currently exists. This failing is possibly due to the fact that Abadee J was asked to review a course of conduct that extended over eighteen years which would encompass consideration of both types of conduct. In any event Abadee's J judgment does not clarify this issue but in support of his decision and presumably in a quest to provide substance to a parent's moral obligations he quoted Fleming who stated:
There is a consensus that the parents' duty to feed, clothe and maintain and generally care for their child is not enforceable in tort, whatever its moral or other legal (for example criminal) sanctions.[195]
I note that this rationale for leniency has strong similarities to the rule from Goller v White.[196] I also note that Fleming's comments are broad enough to encompass what this paper has identified as ordinary domestic decisions and parental decisions. If Fleming contends this then, with respect, that view is erroneous. Barwick's CJ statement should be interpreted to mean that only that conduct which is parental in nature and purpose is unenforceable in tort. This is the type of conduct that comes within the field of leniency which the law wants to protect.
Conclusion
These authorities show that the test of circumstance is a broad test. I submit that this test encompasses to some degree, or allows the court to consider, a wide variety of policy and factual circumstances. The above analysis reveals several policy arguments (which have been termed the 'Circumstantial Matrix') which a court will tacitly consider in making a decision. A problem with this situation is that the cases often appear to be irreconcilable and this facilitates confusion and contempt for the law.
It is... unfortunate that the principal technique for the desirable result is manipulation of the concept of negligence rather than the recognition of a parental immunity... based explicitly on policy grounds...[197]
Australian law needs a clear articulation of the policy grounds upon which our apparent defacto parental immunity doctrine rests. A strong policy ground observed has been the desire to preserve parental decision-making which has required some discussion on what is a parental decision. Many Justices have commented that a parent's conduct was not negligent as it was an ordinary domestic decision. This is conduct which I submit is more mechanical in nature, and which any person can adjudicate upon as to it reasonableness.[198] Conversely, leniency arguably attaches to conduct which is parental in nature and purpose. This however rests upon implications and deductions based upon an interpretation of the above authorities. These observations are given weight by America's experience on this level. America similarly began with the view, as can be observed with the ordinary domestic decision approach, that conduct within the familial field was immune from the court's consideration. Over time this stance has been relaxed and the courts have arguably moved towards providing immunity only for conduct which in its nature and purpose is aimed at child rearing.
American Law: The doctrine of Parental Tort Immunity

Introduction
This part will provide a review of some significant American decisions which assist in showing that the law's reluctance to intervene in the familial sphere is principally tied to the ideal that parents should be able to raise their child as they see fit. This necessarily requires a court to determine what are properly seen to be parental decisions. American law on this topic is premised on the doctrine of parental immunity. This rule was created by the Mississippi law courts and was adopted by most American states.[199] Daniel J noted that the immunity was applied 'primitively' in its early origins [200] and it has since been refined to reflect the global purpose of the doctrine. Which is (arguably) to preserve parental authority and discretion.[201] Despite these historical differences, American law can offer much to Australia. America's experience in honing in on important areas of parental conduct when affording immunity will be a good guide for Australian courts in deciding what circumstances will create a duty.
Historical Origins - The Great Trilogy
The Mississippi Supreme Court 'created'[202] the parental immunity doctrine in Hewlett v George.[203] Without citing an authority and arguing simply on what they believed to be a fundamental principle of society, a parent (mother) was held to be immune from civil action for injuries caused to her child.[204]
...the peace of society, and of the families composing society, and a sound public policy... forbid to the minor child a right... to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand.[205]
Hewlett formed the first step in what is often cited as 'the Great Trilogy'.[206] The second step, McKelvey v McKelvey [207] similarly argued that immunity was warranted on grounds of preserving familial harmony,[208] while in Roller v Roller [209] the court chose to rely upon other policy arguments.[210] This blanket immunity offered to parents was condemned by most academic writers. Although many agreed in principle that parents should be given some leniency they could not support a blanket immunity for all wrongs.
Family harmony, no matter how valued by society, should not dictate that there be no recovery for rape, assault, attempted murder and the like. To apply an immunity in these cases is to place a value on a harmony that is not present. [211]

Traditional Policy Grounds and their Modern Day Critique
Hollister [212] provides an insightful critique of the various policy rationales. She opines that in modern society none of the traditional policy arguments [213] can support the continued existence of the parental immunity doctrine.[214] Hollister does however acknowledge that the preservation of parental authority and discretion is the most important policy ground to support the immunity and one which has

Author:	Ashley McDonald BComm, LLB (Hons) (Mur) Murdoch University School of Law
Issue:	Volume 7, Number 1 (March 2000)

Murdoch University Electronic Journal of Law