Warning: This article contains allegations about historical forced adoption practices which may be upsetting for some readers. Reader discretion is advised.
In the forced adoption case of Lamont, the Supreme Court confirmed that the plaintiff’s consent to the adoption of her child in 1968 was valid and informed, rejecting claims that she was coerced into doing so. The Court further found that the defendants adhered to the societal and legal standards of the time, and were not in breach of their duty of care in the course of the adoption.
In issue
The plaintiff sued the Royal Women's Hospital and Uniting (Victoria and Tasmania) Limited (the defendants) in the Supreme Court of Victoria for damages in connection with the alleged forced adoption of the plaintiff’s baby in 1968.
The plaintiff claimed she was coerced by the defendants into relinquishing her baby against her wishes. The Court considered:
- whether the defendants' actions were consistent with the medical and social practices of the time
- whether the plaintiff's consent was informed and voluntary, and
- whether the defendants' conduct caused the plaintiff harm.
The background
The plaintiff became pregnant at 16 and gave birth to her son on 10 November 1968, at The Royal Women's Hospital (the first named defendant in the proceeding). She claimed she was not allowed to see or hold her baby, and that despite telling staff employed by the first defendant that she wanted to keep her baby, she was informed that her baby would be placed for adoption.
Critically, nine days after the birth, on 19 November 1968, the plaintiff signed a consent form for her baby’s adoption, which was witnessed by a social worker employed by Uniting (Victoria and Tasmania) Limited, the second named defendant.
Almost 60 years later, the plaintiff commenced proceedings against the defendants in the Supreme Court of Victoria asserting that the defendants breached a duty of care to take reasonable care to see that she would not be exposed to a foreseeable risk of injury in connection with the removal and adoption of her baby.
The plaintiff initially sought damages against each of the defendants based on:
- claims in negligence
- the intentional infliction of harm, and
- acting contrary to the provisions of the Adoption of Children Act 1964.
After the plaintiff’s evidence concluded, the plaintiff confined her claim to negligence.
The decision at trial
The Court accepted that the plaintiff was troubled by the adoption and that ‘in her heart and mind’ she wanted to keep her baby. However, it did not accept that the defendants forced or coerced the plaintiff to give up her baby, nor did it find that the defendants were negligent.
The plaintiff gave evidence that she did not sign the consent to adoption form, or was coerced into signing it under duress. Conversely, the social worker employed by the second defendant who took the plaintiff’s consent gave coherent evidence about her practices at the time which included explaining the adoption process, the 30-day revocation period, and the implications of consent.
The Court considered the plaintiff’s evidence to be inconsistent, unreliable and prone to exaggeration, particularly regarding her claims of coercion and the circumstances surrounding her consent. It subsequently found that the plaintiff had indicated her intention to relinquish her baby during a pre-adoption meeting with the second defendant on 9 October 1968, and that she voluntarily signed the consent to adoption form on 19 November 1968.
The Court also considered the broader historical medical and social context, noting that societal attitudes and the lack of financial and social support for single mothers often made adoption a preferential option. It did not accept the plaintiff’s evidence in respect of the counterfactual, considering it ‘somewhat optimistic and unrealistic’.
Further to that end, Judd J succinctly stated that:
In considering negligence and breach of duty through this historical lens, the Court was required to assess whether there was a foreseeable risk of injury and what precautions would have been reasonable for the defendants to have adopted, at the time, and without the benefit of hindsight.
It ultimately found no breach of duty by either defendant, and the plaintiff's case was dismissed.
Implications for you
This case underscores that plaintiffs seeking to pursue claims in negligence against defendant institutions in connection with forced adoptions are required to meet stringent evidentiary standards, as well as the reality that while the experiences of affected mothers were often traumatic, legal remedies are subject to a prospective assessment of what was considered reasonable at the time, without the benefit of hindsight.
