The Weekend Australian article “In the Name of Innocents” (11-12 July 2015) refers to the role of expert witnesses, especially psychiatrists. The clear implication of the article is that some expert witnesses get it wrong, sometimes because of a refusal to accept allegations of sexual abuse against children.
The article highlights the actions of an unnamed psychiatrist in New South Wales who assessed a young girl Lucy in 2007. The article states that her father had begun raping Lucy in his bed when she went on Family Court ordered access visits to his house.
The article goes on to state that revelations about Lucy’s ordeal have raised questions about the Family Court’s heavy reliance on expert witnesses to determine the veracity of sexual abuse allegations.
I have paraphrased the article below.
Social workers, psychologists and psychiatrists are an integral part of the family law system, helping judges to decide what to do in the most diabolical cases. Some worry that too much faith is placed on their findings, particularly in cases involving bitterly contested sexual abuse allegations.
Former Family Law Council chairman Patrick Parkinson believes an enquiry is warranted in the way sexual abuse allegations are handled by the Family Court. “It’s not about condemning existing practices,” Parkinson says, “these are incredibly difficult issues and we need to find the best way of dealing with them. But there is an overreliance on a very small number of experts in each city.”
He says psychiatrist can be extremely helpful in cases where there may be mental illness but they are not necessarily the most qualified professionals to assess abuse allegations. “I think it would be a lot better to have child protection services with experience psychologists or social workers with expertise in this field or regular dealing with these cases who can give the court the benefit of their expertise,” he says.
One eminent Sydney psychiatrist Chris Rikard-Bell, recently told the ABC he believed about 90% of sexual abuse allegations made during a highly conflicted Family Court proceedings were false.
The claim has alarmed several who work in the family law system especially because Rikard-Bell says he has written up to 2000 medicolegal reports.
University of Sydney socio–legal research and policy Professor Judy Cashmore says the available studies suggest the level of false allegations is nowhere near 90% and probably closer to 10% to 15%. This is a view backed by another eminent child psychiatrist,Carolyn Quadrio.
“The real problem is that we don’t have any reliable information, so therefore we have to rely on what we know from overseas research,” Cashmore says. “But it certainly doesn’t support anything like 90%.”
A Family Court spokeswoman says the court “does not accept the suggestion that 90% of sexual abuse allegations in contested Family Court proceedings are false”.
“The statement comes from comments made by one expert witness about cases he sees and does not speak of the overall experience in cases before the court.” She says.
There were more than 5000 substantiated cases of child sexual abuse in Australia in 2013-2014 according to the Australian Institute of Health and Welfare.
Family law barrister Martin Bartfeld says he has been involved in cases that “would make your hair stand on end”.
“The fact of the matter is that there are people out there who have an almost religious belief that sexual abuse is a fantasy the children make up,” he says. “But the forensic evidence and the Royal Commission into child sexual abuse doesn’t bear that out.”
Cashmore says the difficulty is that many of the children involved in family law disputes are very young and it is hard to obtain from them a reliable account of what has happened. False allegations may not be malicious, but in a setting where all trust has broken down mothers can be misinterpret what may be innocent behaviours.
“It’s possible that a parent who already has no faith in the other party parent could misconstrue what has happened,” she says.
Once a child has been repeatedly questioned about suspected abuse, the truth can become even murkier.
Lucy, now 18 said that her abuse began when she was three years old, the court ordered supervised access visits but after several years they were not supervised and included a weekly overnight stay and half the school holidays. She described her father watching her in the bath, being made to look at adult pornography and sleeping in his bed. She claimed she was taken to a house where another man and her father took photographs of her and the other man’s children naked.
Her mother recalled her daughter returning from access visits with rashes between her legs and being diagnosed with multiple urinary tract infections. When she was eight years old she was given Child protection classes at school and subsequently told a school counsellor and the New South Wales Department of Community Services was informed. Her mother said she stopped the access visits immediately and asked the Family Court to award her sole parental responsibility although Lucy’s father vehemently denied the abuse. The Family Court asked for a family report to be prepared and the parties agreed to the Sydney-based psychiatrist doing this.
In his report he wrote “the girl was “very guarded” when she was observed with the father and that she “appeared a little reserved”. When Lucy spoke however, she managed to tell the psychiatrist that “she didn’t want to see her father anymore and that she didn’t want to go to contact”. The psychiatrist reported that the allegations “seemed rather extraordinary”. He said the mother appeared to have “allowed herself to accept ludicrous stories about the child being drugged, bound with duct tape and ejaculated over by the father and for the smell to be on her pyjamas for an extended period of time”.
The report apparently contained only fleeting references to the alleged violence perpetrated by the father against the mother.
Earlier, when Lucy with three, the family Court judge was so concerned about the fathers “abusive and controlling” behaviour, he had ruled that any contact between him and Lucy should be supervised.
That judgement, from April 2000, described the fathers history of drug use and violence, including an incident in which the father had attempted to choke the mother while she was driving, with Lucy in the car.
However the psychiatric report seven years later did not analyse the risk of violence and said the father had “attempted to become rehabilitated”. He recorded comments made about an incident involving the father killing Lucy’s cat. Rather than focusing on whether the father posted unacceptable risk to Lucy, the psychiatrist warned in his report of the risk of supervised access that may cause the father-daughter relationship to “deteriorate and eventually breakdown”.
He therefore told a court his recommendation was for weekly unsupervised access, which he believed would “quickly” restore the relationship between Lucy and her father and help it to grow.
The father prescribed counselling that Lucy’s mother “to help her manage her anxiety” but warned that if “further spurious allegations of sexual abuse arise”, the woman should be given a psychiatric assessment and that “the child be placed in residence with the father”.
The report was so damning that Lucy’s mother says she was advised by her lawyers not to go back to court for fear of losing custody of her daughter. The mother also said that the Department of Community Service investigation was closed for reasons that were not clear.
The authors of this article (who appear to have a propensity for neologisms) noted that the psychiatrist involved cannot be named because the Family Law Act prevents the naming of any witness even an independent expert. The law also makes it difficult to examine other cases in which the psychiatrist had been involved because names and reported judgements are “anonymised”. They later refer to Lucy saying that she had broken her silence when she discovered that the psychiatrist who “disbelieved” her was still in practice assessing cases for the courts.
The authors claim to have unearthed another recent case in which two young children were removed from their mother’s care on the strength of the report by the same psychiatrist. The report marked “for judges eyes alone”, recommended “an urgent change of residence for the children”. In it, the psychiatrist said he did not believe alleged sexual abuse by the father “on balance is likely to have occurred”, and that this was “more the anxiety of the mother which has been projected onto the children”. “I believe the only alternative now to the children to be placed with the father, I recommend that this happened immediately and without notice”. This was apparently done as a result of a court order.
However the actions of the judge were repealed. The full Family Court on appeal said the circumstances of the case had not justified such as drastic step without first hearing from the mother. There were also unresolved concerns about the risk of abuse of the children by the father”.
However, ultimately, after they sent the case back the hearing by different judge, the court found that an abuse allegations had not been substantiated and there was “no unacceptable risk to the children in the care of the father”. After an eight-day hearing Judge Rees made orders in March for the six year old girl and nine-year-old boy to live with their father. The evidence included the expert report and other testimony.
Former Family Court judge, and now Australian National University adjunct Prof Richard Chisholm says cases such as these are agonising for judges because the consequences are so tragic when the court gets it wrong. He says often the evidence is ambiguous and uncertain. “It is a terrible thing if a child was brave enough to disclose abuse is disbelieved and has to endure further abuse.” He says. “It is also a tragic outcome if an innocent person is wrongly treated as a child abuser.”
The head of the Law Council’s Family Law Section, Perth-based Lawyer Rick O’Brien says Judges in the Family Court and the Federal Circuit Court, which handles the bulk of family law cases, are “acutely aware that experts are only witnesses, no more, no less”. “It is the judge’s job to assess the risk based on all the evidence that before the court” he says. “The assumption that John judges simply go along with a single expert underestimate the ability of judges to examine all the evidence and in my experience is wrong.”
The article concluded by describing the distress experienced by Lucy and after the access was finally halted her ongoing symptoms including nightmares and flashbacks.
Commentary
The article has a legitimate point about the reliance of the Family Court on a small pool of expert witnesses however two cases in which they, by implication, indict the unnamed psychiatrist are not a strong foundation on which to build the case. It may well be that the comments with regard to the case involving Lucy were inappropriate when taken out of context but it appears that the opinion of the psychiatrist was upheld in the second case after a further court hearing.
In my experience many psychiatrists have felt that doing Family Court work is a professional obligation however most have abandoned this area of work. I have enormous admiration for those very few psychiatrists who continue to do this work as it is emotionally draining, enormously time-consuming, frustrating and the sort of articles with the underlying scepticism make this work even less inviting.
My own experience was that again and again I was confronted with mothers making accusations of sexual abuse against fathers and the children were caught in the middle.
The final straw for me was when I assessed a 10-year-old girl who was extremely voluble, friendly and who showed no signs of trauma and described relationship with her father in warm, affectionate terms. By contrast her mother was an extremely tight, rigid and cold woman who sexualised what seemed to me hugs and kisses on his daughter’s cheek. Her rage at her ex-husband was unbounded. However I felt sorry for her and unwisely told her that from my observations of her daughter and her own descriptions of the suspect behaviour I could not accept that this was evidence of inappropriate behaviour. She was very angry and upset.
The following day I received a phone call from her telling her that that very night her daughter told her that when her father kissed her he put his tongue in her mouth. This had never been mentioned before, the timing of it seemed incredible. I completed that report but have not written once since then.
I had seen too many situations where accusations were made against fathers, even grandparents. There is no doubt that such things do happen but some of these accusations involved such things as ritual abuse on altars with young babies involving the father, grandparents and other relatives with dramatic details of use of Satanic imagery and costumes and so forth.
The truth is that most sexual abuse with children is banal, opportunistic and depressing to hear. The effects on most children is devastating. The era of “False Memories” fortunately seems to be behind us, but this also had an effect on my wholehearted acceptance of claims of sexual abuse.
I abandoned any further Family Court assessments. Somewhat facetiously I felt that I much preferred working with criminals because at least I knew I was dealing with people who were honest and reliable! Of course the fact is that most people in the Family Court jurisdiction are struggling with terrible dilemmas and decisions and the use of expert such as child psychiatrists has been regarded as very beneficial by most Family Court judges.
It is noteworthy that the authors of the article make no attempt to ask why there is such a limited pool of experts. The article does make for sobering reading however. The authors should look at this website
The Australian Legislative Ethics Commission
to see its list of disgruntled complaints against a psychiatrists writing reports for Family Courts
A Federal Parliamentary Committee Report (Every Picture Tells a Story – 2003) and Chief Justice Bryant (Brisbane 2009) have stated that Family Courts do not have the statutory powers and expertise to investigate child abuse and the simple fact is that Family Courts should not be requiring psychiatrists to report on such matters as it is outside of their area of expertise.
Allegations of Child Sexual Abuse require a long and detailed process of investigation involving a number of professionals including forensic paediatrician, forensic clinical psychologist, police, social workers, etc to obtain corroborative evidence to support the child’s disclosures and parental assertions. The role of psychiatrists is to diagnose and treat mental illness and they have neither the knowledge nor the expertise to replicate the respective roles of these other professionals and in fact their inquiries into such matters can contaminate and corrupt the evidence needed by those other professionals as well as usurping the statutory duties and responsibilities of some of those agencies and professionals.
Any psychiatrist requested by a Family Court to make comment regarding allegations of child sexual abuse would therefore be quite correct in declining to make such comments and to confine their inquiries to the state of mental health of the parties and also possibly the children, which is within their area of expertise and professional responsibilities. The same applies to psychologists who similarly do not have the statutory powers nor the professional expertise to undertake such investigations.
Where any allegations of child abuse, including such abuse occurring during incidents of domestic violence, should properly be referred by the Family Courts for investigation by the statutory authorities appointed by the States to undertake such functions and no decisions should be taken by the Family Courts until full investigations have been completed as stated above and a conclusion has been reached as to whether abuse of child(ren) has occurred and what evidence is available to indicate and corroborate such abuse..
Research (Monash University) shows that less than 9% of allegations of abuse and violence made to Family Courts are false (55% by fathers and 45% by mothers) therefore false allegations of abuse and violence are comparatively rare. The Evidence Act 1995 clearly states that children are competent witnesses and their testimony must be treated as reliable and credible, and this should be the starting point for all investigations of allegations of abuse made by children. American research has also shown that in 96% of instances of children making disclosures/ reports of sexual abuse, the child is being truthful. Despite such research findings the starting point of many professionals involved in investigations of child sexual abuse is the absolute contrary, of beginning their inquiries by accusing the child of lying or of being `coached’.
In conclusion, psychiatrists are being asked to perform a task for which they do not have the statutory powers and for which they have neither the training nor the combined and coordinated approach of other relevant professionals with a range of expertise in such matters..