By Luke Geary, Partner, Carlie Alcock, Special Counsel & Samantha Bond, Graduate
The Victorian Supreme Court has recently handed down a significant decision which examines the application of modern negligence law and institutional liability in a claim of alleged historical ‘forced adoption’. This decision is expected to have a major impact on the trajectory of Australian civil law in relation to historical claims arising from any form of institutional care.
WARNING: This article contains descriptions of forced adoption. The content may be distressing or triggering for some readers. Please take care when reading and consider whether this material is appropriate for you at this time.
| Jurisdiction | The Supreme Court of Victoria |
| Coram | Judd J |
| Date of Hearing | 11–15, 18–20, 25–26, 28 May 2026 |
| Date of Judgment | 31 July 2026 |
| Plaintiff | Barbara Lamont |
| First Defendant | The Royal Women’s Hospital |
| Second Defendant | Uniting (Victoria and Tasmina) Limited |
A full copy of the case can be accessed here.
The plaintiff alleged that as a 16-year-old unmarried expecting mother in 1968, she was placed in the Girls’ Memorial Home in Fairfield (“Girls’ Home”) by her stepmother and grandmother. Upon giving birth to her son, the plaintiff alleged that she was forced into relinquishing her child for adoption by The Royal Women’s Hospital (“the Hospital”) and the Girls Home (operated on behalf of the second defendant). As such, the plaintiff claimed that the Hospital had breached a non-delegable duty to take reasonable care in ensuring the plaintiff would not be exposed to foreseeable risk of injury by its acts or omissions in connection with the removal and adoption of the plaintiff’s baby. The plaintiff further claimed that the Girls’ Home breached a general duty to take reasonable care of the plaintiff during the process of obtaining her consent to the adoption of her son, to avoid causing the plaintiff foreseeable risk of injury and alternatively claimed that it was vicariously liable for any negligence by the social worker exercising the consent process.
Central to this case was the onus on the plaintiff to prove the elements of negligence alleged against each of the defendants, the particulars of which were said to have been the following:
The key factual considerations in this context were:
It is important to note, as reflected in the decision of Judd J, that sections 26(1) and 28 of the Adoption of Children Act 1964 (Vic) (“Adoption Act”) provided the framework for the adoption to occur, though was not ultimately relevant to the Hospital’s conduct in its capacity as a medical provider.
Judd J confirmed that the onus was on the plaintiff to prove each element of her claim, rejecting the plaintiff’s submission that there should be no onus of proof on her to displace the presumption that, as a mother, she had the “sole, exclusive and presumptive right to keep and raise her child”.[1]
While the plaintiff provided counterfactual evidence as to the various supports she may have been able to draw on to enable her to care and provide for herself and her baby, Judd J considered this to be unrealistic as to the “reality of her age, circumstances and financial situation” and noted that the evidence “seemed to ignore societal attitudes at that time”.[2]
Having made a factual finding that the plaintiff had attended a meeting with a social worker before the birth of her son, wherein she had indicated her intention to relinquish her son for adoption, and that she had later provided formal consent for the adoption, many of the plaintiff’s submissions as to negligence fell away.
In assessing whether the defendants had breached a duty owed to the plaintiff, specific regard was had to social attitudes of the day, noting that any such assessment was to be a prospective assessment as to what was reasonable at the time.[3]
As to whether either of the defendants had or permitted policies to remove a child from mothers in the position of the plaintiff, or to coerce mothers in such a position to adopt their child, Judd J found no evidence to support such a claim, nor that the plaintiff was so coerced or forced. In this regard, Judd J accepted that the social worker approached her discussions with the plaintiff from the view that it “would not be in the baby’s best interests to remain with a single mother who did not have family support”, but that holding such a view and exploring with the plaintiff the realities of her circumstances, did not amount to negligence.[4]
To the extent that the Hospital had any policy in relation to babies born to mothers who had indicated an intention to adopt, including to separate the baby from the mother at birth, Judd J considered that the “wisdom of the time”, in 1968, was that it was more compassionate and would cause less harm to separate a mother and baby in the circumstance where the child was being relinquished for adoption.[5] Such a policy, it was held, was not a policy of removal and was “not a policy designed to ‘coerce’ or ‘force’ a mother to give up their baby for adoption”.[6]
In considering whether either of the defendants had an obligation to encourage and support mothers in the position of the plaintiff to keep her child, Judd J found that such an obligation was outside the scope of the defendants’ duties.[7]
With respect to the allegations that the second defendant was vicariously liable for the negligence of the social worker, Judd J held that the claim was ‘so opaque and nebulous as to be meaningless’.[8] Regardless, Judd J noted that the practice of the social worker was careful and considered, being compliant with the obligations imposed by the Adoption Act.[9]
Notably, the plaintiff had relied on public apologies given by each of the defendants, acknowledging their past roles in relation to policies and practices of forced adoptions. This position was rejected on the basis that the apologies provided no evidence as to the specific circumstances of the plaintiff’s case, nor did they amount to an admission of liability in respect of either defendant’s conduct towards the plaintiff.[10]
The decision will undoubtedly have a significant impact on how institutional liability for historical allegations of forced adoption are assessed through the lens of modern negligence law.
The factual findings in the case turned heavily upon contemporaneous evidence, for instance, the records of the adoption including an affidavit of the social worker prepared at the time of obtaining the plaintiff’s consent to the adoption, reinforcing the importance of documentary evidence in claims of historical forced adoptions allegations.
Judd J ultimately accepted that the plaintiff did not want to give up her son and experienced emotional hardship throughout her lifetime due to the adoption. However, in the context of the factual circumstances, the occurrence of the adoption itself, notwithstanding the plaintiff’s genuine desire, was insufficient to establish a claim of forced adoption. This case confirms the inescapable reality that historical allegations need to be proven on the balance of probabilities and institutional conduct must be assessed according to the standards and policies existing at the time.
[1] Lamont v The Royal Women’s Hospital (No 3) [2026] VSC 490 at [39]-[40].
[2] Ibid at [56]-[57].
[3] Ibid at [163].
[4] Ibid at [204].
[5] Ibid at [181]-[182].
[6] Ibid at [181].
[7] Ibid at [183] and [205].
[8] Ibid [197].
[9] Ibid.
[10] Ibid at [188] and [208].
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