Lamont v The Royal Women’s Hospital (No 3) [2026] VSC 490 (Link to JADE).
The plaintiff brought a claim in negligence against each of the defendants: the first defendant as the operator of the Royal Women’s Hospital (the ‘Hospital’); and the second defendant as the entity responsible for the Girls’ Memorial Home in Fairfield (the ‘Girls’ Home’) and the Methodist Babies’ Home in South Yarra (the ‘Babies’ Home’).
The plaintiff reconnected with her child (Derek) when he was 30 years old, but their relationship had always been strained. The plaintiff stated that her ‘main reason’ for bringing this proceeding was to obtain ‘proof for [Derek] that [the adoption] wasn’t voluntary, that [she] would never have ever given him up’.
This case was pleaded as being about the plaintiff being forced or coerced into giving up her baby for adoption, rather than psychological injury flowing from being separated from her baby whilst at the Hospital. ([179]).
However ultimately the Court did not accept that the plaintiff at age 16 was coerced or forced to give up her baby by either the social worker who handled the adoption or hospital staff. The plaintiff did not establish negligence on the part of either the first or second defendants or their employees, servants or agents. ([3]).
Burden of proof
The plaintiff submitted that there is a presumption that the plaintiff, as a mother, had the sole, exclusive and presumptive right to keep and raise her child. As a consequence, there should be no onus of proof on the plaintiff to displace that presumption. The Court rejected any submission that the plaintiff does not carry the relevant onus in this proceeding. The plaintiff has brought a claim in negligence against each of the defendants. The general rule in civil trials is that the party who raises an issue for determination by the Court is responsible for proving it.
In any event the court was positively satisfied that on 9 October 1968, the plaintiff indicated that it was her intention to relinquish her baby for adoption; and on 19 November 1968, the plaintiff gave formal consent for the adoption of her baby.
The hospital
In relation to the hospital, the Court held that it seemed clear that hospital staff kept the plaintiff and Derek separated. This accorded with the practice and policies of the Hospital at the relevant time in respect of ‘A’ patients and was consistent with a belief of hospital staff, at the time, that this was in the best interests of both mothers in the position of the plaintiff and their babies. However it was not clear that the plaintiff made her wishes to hold her baby known to hospital staff. ([151] – [152]). The Hospital’s own policy required staff to give a mother designated as an ‘A’ patient access to their baby if the mother made a specific request to see and care for their baby, and it was not pleaded that this policy was breached. ([160]).
To the extent that the Hospital had a policy in respect of babies born to unmarried mothers designated as ‘A’ patients, it was a policy of caring for a baby in the nursery after transfer from the labour ward and keeping the mother and baby separated for this period, unless the mother specifically requested to see and care for her baby. It was not a policy designed to ‘remove’ a child from the child’s mother. It was not a policy of ‘abduction’. It was not a policy designed to ‘coerce’ or ‘force’ a mother to give up their baby for adoption. ([181]).
The girls’ home
In relation to the second defendant, there was no evidence to support a finding that the second defendant had a policy to remove a child from mothers in the position of the plaintiff, or a policy to coerce mothers in the position of the plaintiff to adopt their child. ([202]). There was no evidence of coercion by the social worker and no evidence to support a finding that the social worker forced the plaintiff to relinquish Derek for adoption, in breach of the Adoption Act or at all. ([203]). The Court accepted the submission of the plaintiff that the social worker approached her role with the view that it would not be in the baby’s best interest to remain with a single mother who did not have family support. However, the trial judge was not satisfied that holding such a view, and exploring with a mother how they would be able to care for their child and themselves when they otherwise had no support, amounted to negligence. This is particularly so in the context of societal attitudes and relevant circumstances in existence in 1968. ([204]).
Apologies
“As to the existence of the Hospital’s 2023 apology, acknowledging its past role in the forced separation of mothers and babies and their subsequent adoption, the plaintiff’s case must be considered on the evidence called in this proceeding and the circumstances relevant to this particular plaintiff. There is nothing in the terms of the apology that amounts to an admission of liability in respect of the Hospital’s conduct towards the plaintiff, nor does the apology tend to establish or support any fact in issue in this proceeding.” ([188])
“The plaintiff relies on a 2012 general apology from the second defendant acknowledging that submissions to the Senate Inquiry into Forced Adoptions ‘paint a disturbing picture of the removal of babies from vulnerable young women who were not able to participate meaningfully in the decisions’. As with the first defendant, this does not assist the determination of this proceeding as against the second defendant. There is nothing in the terms of the apology that amounts to an admission of liability in negligence, as has been pleaded in the current case.” ([208]).
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