Submissions to the Eichelbaum Inquiry: Commissioner for Children, July 2000

The Office of the Commissioner for Children is pleased to have the opportunity to provide input into this very important Ministerial Inquiry. Pursuant to s411(e) of the Children, Young Persons and Their Families Act 1989, the statutory functions of the Commissioner include the power to inquire into and report on any matter (including any law, practice or procedure) relating to the welfare of children.

We understand that the Terms of Reference for the inquiry require an examination of the following matters;

1. Identification of current best practices for investigating mass child abuse allegations, interviewing children and the risks of failing to adhere to best practice.

2. Assessment of whether the investigation and interviews of the children in the Christchurch creche case were conducted in accordance with best practice as now understood.

3. If not conducted in accordance with best practice, identification of the nature and extent of any risks that might have affected the reliability of the children's evidence.

It is commendable that the terms of reference ask for the focus of the inquiry to be on the evaluation of systems and techniques for collecting and testing children's evidence and their impact on children rather than apportioning blame to particular individuals involved in the case.

We think it is regrettable that such an inquiry needs to be conducted. It is undoubtedly traumatic for the children and families involved in the creche case to have to revisit the tragic events of ten years ago when they are now reaching the vulnerable stage of adolescence. We do however, believe that there is the potential for positive outcomes for children in general from this inquiry in the review and clarification of this complex and controversial area, and we would hope that such clarification will led to the development of new understandings and improved practices for those working with young victims of abuse.

We believe that a cautionary note must be made at the outset regarding the Terms of Reference. To measure the validity and reliability of processes and practices used in 1992 against those of 2000 in an area of evolving social science is extremely problematic. It takes out of context the best practices of the day and opens the way to many appeals by convicted offenders.

The Court of Appeal judgement of 14 October 1999 suggested that a number of issues raised by the defence relating to the science of children's memory credibility and relaiability might be appropriately canvassed in a different forum.

The Court stated:
"There may be matters worthy of, and could properly be addressed by, a commission of enquiry, but the Court cannot undertake that kind of function under guise of an appeal under the Crimes Act 1961." (Page 12 para [28]).

But the Court further stated:
"The new material may strengthen the need for care in such situations but the underlying factors giving rise to that need were explored." (page 31 para [50x])

2. A Child's Right to Protection from Abuse

New Zealand as a signatory to the United Nations Conventions on the Rights of the Child is required to ensure that children are heard and protected in all legal processes.

Article 19 provides that States parties shall:
"Take all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has the care of the child. Such protective measures should, as appropriate, include … investigation, treatment and follow-up of instances of child maltreatment and, as appropriate …judicial involvement."

Article 39 requires States parties to:
"Take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation or abuse, torture or any form of cruel, inhuman or degrading treatment or punishment , or armed conflicts. Such recovery and integration shall take place in an environment, which fosters the health and self respect of the child."

These articles together with the general principles of the Convention as a whole require the protection of children's physical and emotional wellbeing, respect for their person and a process which promotes their recovery if they are subjected to sexual abuse. Should they be abused they are entitled to these tenets by way of appropriate treatment within the criminal justice system as well as the appropriate punishment of their abusers.

Processes for investigating child abuse need to ensure that child witnesses are able to give reliable evidence, that the status of children as witnesses is recognised and given appropriate weight, and the stresses placed on child witnesses are minimised and managed in a way that promotes their wellbeing and recovery.

Clearly there are inherent difficulties in the investigation of child sexual abuse and children's participation in the subsequent criminal justice process. These difficulties are compounded in mass allegation cases by virtue of their size. Nevertheless each case involving multiple victims must be looked at on its own facts, as children cannot be denied access to justice because of the complexity of investigating mass allegation cases.

Allegations of contamination by sectors of the community who support the accused need to be scrutinised by the Court but should not be given sufficient weight to preclude justice being done, as this would both deny children access to justice and provide sexual offenders with a recipe for escaping conviction. In the Ellis case the issue of contamination was examined with great care at the depositions hearing and at the trial as well as by the Court of Appeal in the two subsequent appeals.

The application of the United Nations Convention on the Rights of the Child to children unfortunate enough to be involved in situations such as the Ellis case demands that the central principle is that children's disclosures are taken seriously by way of competent professionals utilising all relevant skills in their investigation and in the ensuing Court processes in an appropriate manner which is sensitive to the needs of the children involved. In the absence of this children's evidence is likely to be regarded as not credible and the pervading public view that children make up or lie about sexual abuse will be reinforced.

3. The influence of the Media

The outcome of this Inquiry is being watched, not only by those directly involved, but also by many other people around the country. This is largely due to a very effective media campaign on behalf of Peter Ellis. It is inherent in the nature of sexual abuse investigations that the victims will usually remain "faceless" to the general public and their views will be little represented in the media. The need to protect the privacy of these child victims and protect them from unwanted media exposure is of paramount importance. However in this case the lack of voice on behalf of the victims has enabled Ellis and his supporters to very effectively capture the media platform and use it to sway public opinion and gain support.

The print media, television and radio have given substantial coverage to this case. This is quite understandable when account is taken of the fact that this was the largest case of this type in New Zealand, involving the polarisation of the community in which the offending took place, the length of the trial and jury decision, and the protestations of innocence by the accused in the public media domain.

A careful analysis of the media coverage reveals a complete lack of balance in the media's reporting of the supposed "facts" of this case and the many associated issues. The vast majority of comment and statements have come from Ellis and his supporters and the perspective of the children has been largely unrepresented, and neither could it easily be put forward without jeopardising the privacy of the children involved. However the absence of information to the contrary has made it very easy for Ellis to publicly raise doubts about the validity of what has in fact been an extremely rigorous investigation and court process.

It is of serious concern that despite the fact that there has now been a lengthy High Court trial and two hearings before the Court of Appeal and that ten years have passed, the children involved in this case are still being revictimised in such a public way. Society should be protecting these children from the ongoing violations of their right to privacy and integrity. Ellis and his supporters continue to portray the illusion of innocence in the media and thereby the public of New Zealand. This has a continuing negative effect on the children involved in this case and children generally, and the protective tenets of the law are being constantly eroded by the ongoing media exposure of Ellis.

The public is scrutinizing the media for the result of this Inquiry. Some of the people, both adults and children, observing the progress of this case and this Inquiry will be deciding whether to believe and report abuse or not. Others will be waiting for the outcome of court cases where they are either the complainant or the alleged perpetrator of sexual abuse. The attention of the media has ensured that the impact of this case will reach far beyond those directly involved.

4. The Significance of Precedence

In Collector of Customs v Lawrence Publishing Co Ltd [1986] 1 NZLR 404,414 Richardson J stated "Adherence to past decisions promotes certainty and stability. People need to know where they stand, and what the law expects them to do. So do their legal advisers. And a court which freely reviews its earlier decisions is likely to find not only that the Court lists are jammed by litigants seeking to find a chance majority for change, but also that respect for the law on which our system of justice largely depends is eroded."

4.1 Retrospective Nature of the Inquiry

The Terms of Reference cast the onerous burden on the Inquiry of testing the evolving methodology of evidential interviewing in the year 1992 against the evolving methodology of evidential interviewing in 2000. In an area where research and literature are constantly evolving there has to be a point where the proper standard becomes the good practice of the day unless there is some dramatic new and undisputed knowledge. Otherwise there is no safety for those working in the area or for those families undertaking the process.

In analogous cases involving heightened awareness such as Tamihere and Rewa where new evidence was presented of cogency, the conviction remained, as there was not sufficient contextual evidence to dislodge the standard of beyond reasonable doubt.

The issues of using the benefit of hindsight in the criminal justice area were well canvassed in the Cown's submissions to the Court of Appeal in the Ellis case in 1999 and by that Court in their detailed judgements of 1994 and 1999.

4.2 Effect of Inquiry on the Child Complainants

The child complainants are presently under enormous pressure in waiting for the outcome of this Inquiry. They have faced a decade of pressure as a result of the criminal justice system and being the focus of well orchestrated media attention.

The children and their familes in the Ellis case have already placed considerable reliance in the criminal justice system but they are still waiting for some respect and validation of themselves. Despite the guilty verdicts, the conviction, the sentencing and the subsequent appeal losses by Ellis, they are living with the knowledge that their "word" is once again being doubted and challenged.

4.3 Perceptions of Children in Wider Society

Other children who have been sexually abused will also be aware of the negative effects of police and judicial involvement after reporting abuse following the media publicity given to the Ellis case and there are no doubt some who are waiting to see the outcome of this Inquiry before reporting abuse.

Awareness of sexual abuse and improved systems for dealing with it occurred in most western countries during the 1980's and early 1990's New Zealand was at the forefront of this movement with the Evidence Amendment Act 1989 and Evidence (Videotaping of Child Complainants) Regulations 1990 and the associated protocols and practice guidelines for gathering children's evidence that have been developed.

There is a very real potential for the conduct and outcome of this case to have a disastrous effect for children in our society who have been sexually abused in terms of the negative impact this case is having on their willingness to report abuse and trust that the systems in place will support them. It is important that the credibility of our system is maintained and upheld.

4.4 Effect on Convicted Offenders

When legal precedent is changed in favour of a person convicted of a particular offence there will undoubtedly be those convicted of similar offences who think they may be able to "get off" also. The fact that this is an Inquiry and not a Court of Appeal does not alter that perception. That there is an Inquiry, which is again scrutinising the guilt or innocence of Ellis, must in itself be heartening to many that have been similarly convicted. Not only is there now a perception of many routes of appeal, but there may also be a chance to ride on the wings of a Ministerial Inquiry result. Persons who have been convicted on whatever evidence, under the same rules of law that Ellis was convicted, will no doubt be keeping a vigil on the outcome of this Inquiry.

5. Lack of Ecological Validity in the Research Base

The majority of research into interviewing is conducted in analogue settings. Experimental designs allow for clear conclusions within these settings. Under condition A, with questions B C & D asked of a child aged X about an innocuous event, children are likely to say F G or H. In its' specificity and within the ethical parameters of research design (not involving traumatised children), the research base does not have direct applicability to the real world, a fact that many researchers take great pains to point out in the dissemination of their research findings. As consumer of analogue research, we cannot directly generalise the findings of analogue research to court cases involving allegations of child sexual abuse.

Even research around traumatic events, such as children's experiences of hurricanes, or invasive medical procedures, cannot be generalised to children suffering sexual abuse trauma. There is no research that can clearly show that memory and recall processes for public trauma is analogous to the processes children who have suffered private and covert trauma go through.

Our literature searches have also not revealed any conclusive research into mass allegations of abuse. The limited research on bizarre allegations, which may be of relevance to this case, is polarised, with no clear conclusions. In all cases of alleged child sexual abuse, mass allegation or not, if a child tells a parent about something they allege has happened to them, a caring parent is likely to talk to the child about it and offer them support, as is their role. The criminal justice system cannot, and should not, detract from this protective behaviour. Instead, issues of contamination should be put before the jury. It is clear from the discussions of the Ellis case by the Court of Appeal in both decisions that the jury knew about the potential for contamination and took it into consideration in their weighing up of the evidence.

The research that involves analysis of questioning of children (without any analysis of contextual factors) concludes that facilitating free recall decreases the chances of commission errors (including information about things that didn't happen), but it also increases the chances of omission errors (excluding information about things that did happen). In the real world of child safety and perpetrator accountability, interviewers walk a tight-rope between reducing commission errors and reducing omission errors when questioning children under 8 years. We need interviewers to be professional in their understanding of the scientific literature and their integration of this literature into their practice. However, at the end of the day, the real world cannot replicate the artificial world of the scientist.

6. Conclusion

6.1 State Protection Systems

The law is made up of principles and processes to protect the accused and the victim. It is submitted that the questioning ten years later of children's testimony by practice standards that are out of time and their relative context, is unjust to these children. The most positive outcome (which it is submitted was an implied reason for referral of this case to an Inquiry by the Court of Appeal) would be the implementation of recommendations that provide for a greater degree of protection for children and an improvement of the systems put in place to safeguard them.

In this case and indeed in all investigations of allegations of child sexual abuse the credibility of the evidence depends on the professionalism of those responsible for the investigation and prosecution of abusers. There will never be a hard and fast blueprint for these cases, particularly those involving mass allegations. Scientific research, by definition, will never be able to answer all the complexities of issues these cases raise. We need to enhance the professionalism skill-base and knowledge base of the professionals involved. In this regard, there are a number of inadequacies in the current systems that could be addressed if we are to better protect children's access to justice and make perpetrators accountable.

6.1.2 Creation of Formal Structures within the Police

We are unaware of an infrastructure within the New Zealand Police for child abuse work. The teams work independently around the country, with no formal process for sharing knowledge and skills learnt through the investigation of child abuse cases. There is no systematic process for officers to learn from the mistakes and successes of previous inquiries. Most investigating officers are working for short stints on child abuse teams and thus staff turn-over on teams is high and many do not get training prior to their commencement on teams. This combination results in a lack of institutional memory within the police for child abuse work.

6.1.3 Standardisation and Improved Training

We are unaware of any person responsible for ensuring standardisation of interviewing practice around the country, as there is no one responsible for this work in Child Youth and Family or the Police. Current training in evidential interviewing is limited to one annual two week course. Without some ongoing national oversight it is difficult to ensure interviewers are sufficiently skilled. This leaves interviewers vulnerable in the court setting and means that there is practice variance around the country. Similarly there is no specific training on investigating and interviewing in mass allegation cases. While there is ongoing peer tape review every six months, this is not monitored. There are no courses formally offered to advance interviewer's practice from the basic level. It seems to us that there is a need for a quality assurance process built in to the interviewing of children.

6.1.4 Multiagency Centres (One Stop Shops)

This Office believes that many of the current difficulties with child abuse investigations both from a children's rights perspective and an evidential perspective would be overcome if we were to establish Multiagency Centres in this country. These centres have been developed in many jurisdictions in the United States. They aim to provide a coordinated comprehensive multidisciplinary response to child abuse; to prevent or reduce trauma to children caused by multiple contacts with professional and Courts and to provide services to child victims and their families. They offer a single child friendly location for interviews and evidence collection away from hospitals and police stations and are staffed by specialists from a range of disciplines working within the child sexual abuse area.

6.1.5 Support for the Child

Child witnesses should have the right to assistance, support and preparation for the experience of giving evidence. We suggest that Child Advocates be available to assist the child complainant in child abuse cases within the criminal justice system. The role of such an advocate would be to ensure the court process is fully explained to the child and that they are supported through the investigative and trial processes in a way that minimises stress on the child and does not jeopardise the evidence. This practice would be in accord with very successful specialist child witness support units programmes in NSW and Perth. The Western Australian Child Victim Witness Service has been shown to significantly reduce the trauma to the child of being involved in the investigative and criminal justice process. These services are best located within a venue such as the previously mentioned Multiagency Centre.

6.2 Increased Public Education

The risk of negative finding by this Inquiry creates the potential for children to ultimately lose access to protection and offenders walking free through a public backlash process. Given all that we know about sexual offenders and their denial mechanisms it is ironic that Ellis' denial of these allegations has received so much attention in the public domain, most of it ill informed. Futher work needs to be done by those working in this area to educate the public about the reality of and the effects of sexual abuse.

6.3 Protection from the Media

Given that the nature of child sexual abuse cases means that it will almost always be impossible to present a balanced view of the facts because of the need to protect the children's privacy, there has to be some restriction placed on the media's freedom to incessantly promulgate the views of the accused. The constant reminders to children of past tragic events and continually having doubts cast on their experiences is highly detrimental to their psychological recovery and social reintegration. Particularly in a situation such as this where the issues have been extensively canvassed and tested by the Courts also. We believe that the recovery of child complainants from sexual abuse would be greatly enhanced if both the amount of media coverage and the length of time over which the case was discussed were severely curtailed. This would be in accordance with our obligations under the United Nations Convention on the Rights of the Child (article 39).

7 Recommendations

The Office of the Commissioner for Children makes the following recommendations:

7.1 That a position be created within the Police Department to service the Police Child Abuse Teams. This position would act as a liaison and central link developing consistent procedures and processes for sexual abuse investigations.

7.2 The development of a joint position between Child, Youth and Family and the police to ensure quality assurance and consistency in interviewing practice throughout New Zealand. This person would be responsible for surveying the literature, updating the 1994 guidelines in consultation with experienced interviewers, organising ongoing training and supporting interviewers in their practice.

7.3 The establishment of one stop shop Multiagency Centres that will integrate existing services and provide a coordinated approach to child abuse investigations.

7.4 The establishment of child witness support programmes.

7.5 The public education about sexual abuse and offender profiles be undertaken by Child, Youth and Family, the police and those agencies that work with sexual offenders.

7.6 That the media be restricted in their ability to continually publicise cases involving child sexual abuse complainants.