TOWARDS A SAFER AND MORE CONSISTENT APPROACH
TO ALLEGATIONS OF CHILD SEXUAL ABUSE IN FAMILY
LAW PROCEEDINGS – EXPERT PANELS AND
GUIDELINES.
BY: MATTHEW MYERS
Disclaimer: The views expressed in this paper are those of the writer and do not in any way represent the views
of the Federal Magistrates Court of Australia.
Matthew Myers: Towards a safer and more consistent approach to allegations of child sexual abuse in
Family Law Proceedings - Expert Panels and Guidelines.
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INDEX
1
Overview
2
Low prevalence, but high degree of difficulty
3
Not all allegations are true
4
Children’s reluctance to disclose
5
Reservations about children’s evidence
6
Children’s capacity to remember and report events accurately
7
Children’s Capacity to Lie
8
Distinguishing fact from fantasy
9
Suggestibility
10
Comprehension of Questions.
11
Reliance on expert evidence
12
Family Reports
13
Expert witnesses
14
Interview techniques
15
Use of memory aids
16
The science of expert opinion
17
Recognition of a specialist area of skill
18
Guidelines
19
Training , credentials and implementation of panels
20
References
Matthew Myers: Towards a safer and more consistent approach to allegations of child sexual abuse in
Family Law Proceedings - Expert Panels and Guidelines.
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1
Overview
While allegations of child sexual abuse in proceedings before the Family and Federal
Magistrates Courts are infrequent they are highly problematic given the issue is very serious
and such allegations are hard to prove or disprove. Often there is no physical evidence of
sexual abuse and the only witnesses to the alleged abuse are the alleged perpetrator and the
child. Courts must be careful when examining allegations of child sexual abuse as such
abuse can cause lasting psychological damage while remaining mindful that often the party
alleging abuse is a parent who may obtain a strategic advantage in the proceedings and if
false allegations are believed. Where such allegations are believed the consequences for the
accused parent are severe.
Cases involving child sexual abuse before the Family Court tend to be more difficult to
resolve than those in criminal proceedings because the children in family law cases are
typically much younger. Young victims of sexual abuse are vulnerable in that their evidence
can easily be misunderstood or contaminated through the use of inappropriate interview
techniques and repeated questioning.
As a means of dealing with the complex nature of sexual abuse allegations in family law
cases the Federal Legislature, High Court, Family and Federal Magistrates Courts have
developed tests of “unacceptable risk” in order to deal with those allegations and promote the
best interest of the child, but children are not permitted to provide evidence directly as
witnesses in Family or Federal Magistrate Court proceedings. Federal Magistrates and
Judges are therefore heavily reliant on experts to interview both the child who is the subject
of the allegation of abuse as well as the alleged perpetrator, in order to determine whether the
perpetrator presents as an unacceptable risk of abuse to the child or whether a finding of
sexual abuse should be made.
This paper will address both the competence of child testimony and the competence of expert
evidence and then suggest a strategy for ensuring that evidence in these matters is reliable
and of a consistently high standard to protect the interests of all parties including children.
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2
Low prevalence, but high degree of difficulty
Allegations of child sexual abuse are not common in Family Court matters (Thoennes and
Tjaden, 1989; Brown, Fredrico, Hewitt and Sheehan, 1998; Bordow cited in Neoh and
Mellor, 2009), but these cases tend to be the most difficult to resolve, more often go to trial
and more often require involvement of specialist practitioners (Neoh and Mellor, 2009).
Brown et al (1998) found in Canberra and Melbourne that only five per cent of cases over a
30 months period involved allegations of abuse (including physical and emotional abuse and
neglect as well as sexual abuse), but these cases made up 50 per cent of the workload halfway
through proceedings and 30 per cent at trial stage.
Cases involving child sexual abuse before the Family Court tend to be more difficult to
resolve than those in criminal proceedings, because the children in Family Court cases are
typically much younger (Strand, 1994; Neoh and Mellor, 2009). While child sexual abuse
most commonly begins between the ages of six and 10 years (Finkelhor, Baron, Browne,
Doyle, Peters and Wyatt, 1986; Suwa, Tversky, Nicoll, Radin, Santos and Tuan, 1997),
Family Court cases more often involve children aged between two and four years
(Macfarlane, 1986). A study of allegations in children’s proceedings in Victoria and South
Australia by the Australian Institute of Family Studies (Smyth, Moloney, Weston,
Richardson, Qu and Gray, 2007) found that allegations of parental abuse of children made up
22-24% of the general litigants sample, but 11-46% of cases requiring judicial determination,
illustrating that these cases are more often formally litigated, rather than dealt with at a precourt negotiation stage. Cases that progressed to a defended hearing were not only more
likely than others to include allegations of child abuse, but also more likely to involve twosided allegations. While cases involving allegations of sexual abuse were few in the general
litigants sample (3% of both Family Court and Federal Magistrates Court cases), they made
up a larger proportion of judicially determined cases (11% of those in the Family Court).
Most cases involving allegations of parental child abuse (63% of those in Family Court, 86%
of Federal Magistrates Court cases) contained no supporting information.
Criminal prosecution and conviction rates for child sexual abuse in Australia are believed to
be very low (Fitzgerald, 2006). However, the low number of allegations made in criminal
and family law contexts should not be read as indicators that child sexual abuse occurs
infrequently in Australian society. This is more likely a consequence of the high standard of
Matthew Myers: Towards a safer and more consistent approach to allegations of child sexual abuse in
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proof that is required to obtain a criminal conviction (a Judge or Juror must weigh the
evidence against the standard of being “beyond reasonable doubt”) and parents alleging child
sexual abuse in Family or Federal Magistrates Court risk a mandatory cost order against the
alleging party if the Court is satisfied that the allegation is false. Research suggests the low
prosecution and conviction rates in the criminal justice system may also be due to jurors
tending to perceive child witnesses to be unreliable (Sumner-Armstrong and Newcombe,
2007), particularly if there has been a delay in reporting the abuse (Lewis, 2006); due to
parents choosing not to report these matters because contact with the court system can be
highly traumatic for children, particularly the experience of cross-examination (Davies,
Devere and Verbitsky, 2004; Powell, 2005; Coussins, 2006); due to children having difficulty
understanding legal language and answering questions within the constraints imposed during
cross-examination (Hoyano, 2007) and under the pressure exerted during cross-examination,
which has been described as “an opportunity to confuse” (Coussins, 2009).
While low in absolute terms, the number of child sexual abuse allegations made in Federal
Magistrates and Family Court proceedings is relatively high in comparison with allegations
made in non-family dispute matters. The Family and Federal Magistrates Court process is
different from that of the Criminal Justice System in that children are not required to appear
as witnesses in the court to give evidence and the testing of a disclosure of sexual abuse in
order to determine whether a person presents an unacceptable risk of abuse to a child is
usually left to a single expert appointed by the court.
The evidence of young children in cases involving allegations of abuse is both controversial
and problematic in terms of its reliability. In order that the best interest of a child be
promoted and protected, the issues involved in obtaining accurate testimonies from young
children about sexual abuse must be carefully examined to establish a means of reliable fact
finding. Because physical evidence of molestation is rarely present, disclosure by the alleged
child victims in these cases is often the only substantial evidence against an accused parent.
Quite often, Family Court Judges and Federal Magistrates are required to choose between
two competing and largely uncorroborated accounts of events. In the absence of definitive
material evidence, the plausibility of the respective accounts is heavily dependent on the
perceived reliability of a disclosing child.
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3
Not all allegations are true
There has long been concern that, in the context of bitter divorces and child-custody disputes,
children may be manipulated into making false accusations of sexual abuse (Wilson, 1986;
Jones and McGraw, 1987; Byrne, 1991, 1992). Rayner (1989) concluded that there is a real
risk of wrongful conviction, though few documented occasions where children have told
convincing stories which were not true.
In the late 1980s a movement developed that
questioned the credibility of child abuse evidence, attributing many disclosures by children to
“brainwashing” (Crewdson, 1988; Hechler, 1988).
Given the serious nature of the child abuse allegation and the consequences to a child’s
relationship with a parent when a finding of unacceptable risk is upheld by the Court, it is
crucial that the Court be able to distinguish between cases where false disclosure is instigated
by one parent as a means of obtaining a strategic advantage over the other and cases where
there is a genuine unacceptable risk of abuse to the child. Those investigating such
allegations must take care to not contaminate evidence so it can be deemed reliable in Court,
while at the same time ensuring that accusations that may be false are not accepted without
question.
Complaints of this nature addressed in the criminal justice system have sometimes been
shown to be unfounded (Wilson, 1986; Scott and Dickens, 1989) and the Australian Sea
Beach Kindergarten case (better known as “Mr Bubbles”) serves as a warning about some
common problems in the investigation of child abuse allegations and the giving of evidence
by children. The true facts of this matter remain unknown, because both the forensic tests
applied by medical professionals and the interviewing techniques used to collect evidence
from children were so flawed that the evidence emerging was worthless. While medical
examinations did not provide any credible evidence of sexual abuse, they did show that the
children's stories of stabbing and cutting had no basis in fact because no physical evidence of
injury was found. This case also exemplifies failure of the system to protect and balance the
rights of the alleged victim with those of the accused (Hatty, 1991). While it remains unclear
whether there was any truth in the sexual abuse allegations, it is certain that these children
grew up with appalling “memories” of sadistic sexual abuse, whether based on real
experiences or implanted ideas. If they were sexually abused, then the system failed them. If
they were not abused, then the system’s processes may have damaged them emotionally.
Matthew Myers: Towards a safer and more consistent approach to allegations of child sexual abuse in
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Several US studies have addressed the probability of allegations of child sexual abuse in
Family Court contexts being false. Thoennes and Tjaden (1989) found that of 105 divorce
cases involving allegations of child sexual abuse, half were confirmed, one third were found
to be not true and the rest remained unclear. A smaller study of 20 Family Court cases (Jones
and Seig, 1988) found that most allegations of child sexual abuse were found to be reliable
(14 of 20 or 70%), a minority (4 or 20%) were found to be untrue and two (10%) remained
unclear. However, most of the unsubstantiated allegations were perceived to have been made
in good faith, rather than through malice. Faller (1991) examined 136 cases and found that
most allegations were true, but between 15 and 25 per cent were untrue.
In Australia, Brown et al (2003) re-examined the 100 cases of the Magellan Project (a quarter
of them substantiated by a Child Protection Agency report) and found that allegations of
abuse had been found to be false in only 11 cases. Mothers had made allegations twice as
often as fathers (48% vs 21%). While two thirds of allegations by mothers (32 cases of 48)
were substantiated, only one third (7 cases of 21) of allegations by fathers were substantiated.
In only one case was the allegation made by the child and this case was substantiated. In
most of the substantiated cases (32 cases or 63%), the father was the perpetrator. Most of the
other substantiated cases (16 or 31%) were other family members, but these did not include
any mothers. The 11 cases where allegations were found to be false were fairly evenly
divided between allegations by mothers (5) and allegations by fathers (6), but it was also
noted that in most of these cases, the alleging parent was receiving treatment for serious
mental illness and/or had a history of being sexual abused as children themselves.
After reviewing the literature, Neoh and Mellor (2009) concluded that most allegations of
child sexual abuse made in Family Court cases are true, but that a small proportion do appear
to be false and, since the stakes for all concerned are exceedingly high, assessment of
families in these circumstances must be conducted with great care. As Neoh and Mellor
noted, concern in the Family Court is with the specific case, not with the majority of other
cases.
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4
Children’s reluctance to disclose
In cases before the Family Court, allegations of child sexual abuse are very rarely initiated by
the children themselves.
There is general agreement that children have more difficulty reporting abuse within the
family than abuse from outside (DiPietro, Runyan and Fredrickson, 1997; Sjöberg and
Lindblad, 2002b; Goodman-Brown, Edelstein, Goodman, Jones and Gordon, 2003). Children
may feel loyalty to the perpetrator and fear family reactions to the disclosure or possible
consequences for family members. Yet even when the perpetrator is a stranger, children are
unlikely to report the event spontaneously and they may be reluctant to disclose details of the
sexual abuse when questioned about it.
Occasionally researchers have been able to address children’s reporting in cases where the
abuse had already been established as fact through independent photographic or video
evidence, medical evidence and/or confession by the perpetrator (Bidrose and Goodman,
2000; Leander, Granhag and Christianson, 2005; Orbach and Lamb, 1999; Sjöberg and
Lindblad, 2002a; Svedin and Back, 2003; Leander, Christianson and Granhag, 2007). These
studies have generally found children’s accounts to be incomplete and fragmentary, tending
to omit sexual detail and sometimes denying it directly, but that what children did tell about
sexual abuse was generally accurate.
The chance discovery by Swedish police of
photographic evidence of child sexual abuse created the opportunity for a recent study
(Leander, Christianson and Granhag, 2007), particularly when the perpetrator confessed to
sexually abusing on separate occasions 17 children and provided detailed information about
each of these offences. Only six of these incidents had previously come to police attention
and a further two children were interviewed a few years after the relevant events. The
remaining 9 children either remained unidentified or their parents refused permission for the
children to be questioned by police. While almost all of the eight children who were
interviewed provided details of events leading up to and following the sexual acts, only two
gave detailed reports of the sexual acts themselves and one other gave a few sexual details.
As well as omitting all sexual details from their accounts, most children showed reluctance to
discuss the sexual acts, even in response to leading questions.
There was no simple
relationship evident between age and reporting of the sexual assaults. The youngest (aged 3)
had difficulty providing both sexual and non-sexual details, but the next (aged almost 4) was
Matthew Myers: Towards a safer and more consistent approach to allegations of child sexual abuse in
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able to provide substantial non-sexual detail and some sexual detail, while three children who
were aged 5 at the time of the offences, but were older when interviewed (8-10 years), gave
extensive details of events before and after the sexual assault, but no sexual detail at all. The
two who provided the most sexual detail were aged 6 and 9 respectively, both at the time of
assault and at interview, and they also provided extensive information about events before
and after. The eldest at the time of interview (aged 10) provided a lot of non-sexual detail,
but no sexual detail.
Some research has found that younger children have more difficulty reporting sexual abuse
(Smith et al, 2003; Sjöberg and Lindblad, 2002b), while other studies have found the reverse
(Goodman-Brown et al, 2003). This apparent inconsistency may arise because the constraints
on reporting sexual abuse change as children mature. In younger children, omission of sexual
details has been attributed to factors such as limited memory capacity (Howe and Courage,
1993; Kail, 1988; Schneider and Pressley, 1989), limited language capacity (Fivush, 1993;
Howe and Courage, 1993; Ornstein, Larus and Clubb, 1991) and limited knowledge about the
acts (Bussey and Grimbeck, 1995). Older children know more and have better verbal skills,
but are also more aware of the taboo nature of the sexual acts and so may omit sexual details
because they feel shame or guilt (Goodman-Brown et al, 2003).
Fear of negative
consequences of disclosure may also contribute, as well as fear of being blamed or not
believed (Sas and Cunningham, 1995; Sauzier, 1989).
In the Family Court, most allegations of child sexual abuse are made by mothers, most
involve female children and the father is far more often the accused than the mother, though
other relatives and new partners of mothers make up a substantial minority (Brown et al,
2003; Bordow, cited in Neoh and Mellor, 2009). This is in keeping with other research
findings that perpetrators of sexual abuse within the family are usually male and victims are
usually female. Solomon (1992) reviewed 3,864 substantiated cases of sexual abuse within
the family to find that 87 per cent of perpetrators were male and 85 per cent of victims were
female and Smallbone and Wortly (2001) interviewed 169 convicted sex offenders to find
that incest victims were 10 times more likely to be girls than boys.
Given that, in Family Court cases, young children are rarely the initiators of allegations of
child sexual abuse and most are at an age where limited cognitive and verbal skills restrict
their accounts of the relevant events, most allegations are based upon interpretations of their
behaviour by mothers and others. The problems associated with collecting reliable evidence
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from very young children, together with the preponderance of mothers making allegations,
has led to a lengthy debate about the proportion of these allegations that are either misguided
or maliciously false. A “parental alienation syndrome”, whereby false allegations of sexual
abuse are maliciously made by mothers to undermine the father-child relationship and deny
access (Gardner, 1999, 2001; Turkat, 1994; Freckleton and Selby, 2008), has retained some
currency in the Family Court (Berns, 2001; Achimovich, 2003), despite being widely
criticised in academic literature (Bruch, 2001; Faller, 1991; O’Leary and Moerk, 1999).
Historically, due to the difficulties involved in eliciting reliable verbal evidence from
children, there has been heavy reliance upon behavioural evidence to support allegations of
child sexual abuse and a few writers in the US child custody evaluation field persist in
recommending that pre-adolescent children not be interviewed at all.
“Typically, the evaluator does not interview the pre-adolecent child... (This) remains the
best practice approach in light of the validity and reliability concerns adequately
documented in the literature.” (Benjamin and Gollan, 2003, p86).
However, this is no longer the predominant view because interpretation of behavioural
indicators is highly problematic, because there is no clear-cut syndrome or definitive set of
behavioural symptoms that can identify that a child has been sexually abused (Gratz and
Orsillo, 2003; Hagen, 2003; Friedrich, 2005; Faust, 2009; Kuehnle and Connell, 2009; Gould
and Martindale, 2009).
“One of the most important findings from the past several decades of research in this area is
that no single sign or symptom, including aberrant sexualized behaviour, characterizes the
majority of sexually abused children.” Kuehnle and Connell, (2009, p378)
While the short term and long term effects of child sexual abuse are well documented
(Jumper, 1995; Neuman, Houskamp, Pollock and Briere, 1996; Fleming, Mullen, Sibthorpe
and Bammer, 1999; Paolucci, Genuis and Violato, 2001), there is no established set of
behavioural indicators that can be used as a diagnostic tool for identifying cases of child
sexual abuse (Kornberg, 1992; Neoh and Mellor, 2009). Children traumatised by sexual
abuse can exhibit a wide range of behaviours (Finkelhor et al 1986; Everstein and Evertstein,
1989; Udwin, 1993; Bernet et al, 1997) or there may be no noticeable change in their outward
behaviour. There are many psychological variables, such as aberrant sexual behaviour, postMatthew Myers: Towards a safer and more consistent approach to allegations of child sexual abuse in
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traumatic stress disorder, eating disorders and loss of bladder or bowel control that have
demonstrated validity as indicators of child sexual abuse (that is there is an association), but
that are not differentiating (that is they may occur in children who have not been sexually
abused for other reasons) (Faust, Bridges and Ahearn, 2009; Kuehnle and Connell, 2009;
Gould and Martindale, 2009).
The behavioural symptoms exhibited by sexually abused children vary significantly and are
believed to be influenced by the child’s personality and interpretation of the abuse event/s,
the identity of the perpetrator, characteristics of the sexual acts, concurrent family problems
such as violence or instability and the other care-giver/s’ responses. Some sexually abused
children show no behavioural symptoms. Sexually aberrant behaviour, considered to be the
most explicit and treatment-resistant symptom of sexual abuse (Friedrich, 1993; 2005), does
occur in some children with no known history of sexual abuse. However, most of these
children have experienced other forms of abuse such as family violence and/or exposure to
adults engaged in sexual activity or to pornographic materials (Bonner, Walker and Berliner,
1999; Pithers, Gray Busconi and Houchens, 1998; Friedrich, Grambsch, Damon, et al 1992).
There are many sources of stress for children involved in acrimonious separations which may
produce changes in behaviour. A plausible explanation for misguided allegations of sexual
abuse is that the trauma of parental separation, involving new living arrangements and often
new relationships for the children, as well as increased conflict between the parents, may
itself produce a range of symptoms including sexualised, regressive or aggressive behaviours
that may also be associated with sexual abuse (Thoennes and Pearson, 1988; Ehrenberg and
Elterman, 1995; Mapes, 1995).
Kuehnle and Connell (2009) in their recent overview also urged caution in relying on the
recollections and interpretations of parents and other family members and carers, explaining
in some detail the many potential sources of error in these accounts.
Despite the existing safeguards within the Family Law Act, innocent people can appear to
present an unacceptable risk, while the guilty may be allowed to spend time with young
children with harmful consequences.
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Reservations about children’s evidence
5
Judges and Magistrates have acknowledged misgivings regarding the capacity of children to
give accurate evidence at trial; not because they believe children are more prone to lying than
adults, but because children may make ‘unconscious errors’, influenced by fantasy or by
other people (Cashmore and Bussey, 1996).
Issues of concern in relation to the testimony of children in abuse cases have included:

the accuracy of children’s memories

the ability of children to distinguish between truth and lies, fact and fantasy

the suggestibility of children’s minds

the capacity of children to comprehend what is being asked

the capacity of the questioners to ask appropriate questions in an appropriate way and
to correctly interpret children’s responses.
6
Children’s capacity to remember and report events accurately
It has been alleged that the limits of children's attention and memory capacity make their
testimony, not merely quantitatively, but qualitatively inferior to that of adults (Heydon,
1984). However, recent research suggests that children as young as three can provide reliable
and useful testimony (Bussey and Grimbeek, 1993; Leander, Christianson and Granhag,
2007; Kuehnle and Cowan, 2009). Davis (1991) found that the first spontaneous accounts of
staged events by children were as accurate as those by adults, though the quantity of
information recalled was generally less.
Errors in children’s memories are often errors of omission rather than commission. While
children often recall less than adults do, what they do recall in response to open-ended
questions like “What happened?” is not less accurate (Goodman and Hegelson, 1985; Taylor,
Geddis and Henaghan, 1990). The quantity of detail freely recalled appears to increase with
age, probably due to development of memory storage and retrieval skills: limits on young
children’s attention may reduce the amount of information encoded and limits on retrieval
strategies related to verbal development may reduce the information that is retrievable (Turtle
and Wells, 1987; Raskin and Yuille, 1989). When asked to recall as much as they can about
an event without prompting, younger children omit more details than adults do, but children
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as young as three years have been found to be capable of supplying details about a complex
event (Bussey, 1992) and some studies found no significant variation in accuracy related to
age (King and Yuille, 1987).
Because children remember less than adults in unprompted recall, retrieval of their evidence
is usually more reliant upon verbal and nonverbal probing, but this provides opportunities for
intentional or unintentional suggestions to influence their memory. While it is generally
agreed that by the age of ten or eleven, children are no more vulnerable to misleading or
incorrect information than adults (Cole and Loftus, 1987), younger children, particularly
those under seven years, may be particularly vulnerable to misinformation about peripheral
facts, such as a person’s clothing, though more reliable about central events. Goodman,
Bottoms and Aman (1990) found that children's accounts of the central features of staged
events remained reasonably accurate even up to a year later.
Wakefield and Underwager (1988) suggested that memory is never absolute, but an
interpretation of reality and that children may implant or create memories from information
given to them, but that this stems from problems in interviewing techniques, rather than the
limited ability of children to recall events from memory without error.
These research findings support the current criminal justice system position that child sexual
assault witnesses should not be considered any less reliable than adult witnesses, but also
underline the importance of using methods to extract information from the memories of
children that minimise the risk of contamination.
7
Children’s Capacity to Lie
While historically the “children never lie” proposition has had a strong following, there is
abundant evidence that they do not always tell the truth, but the age at which children become
capable of intentionally misleading others and the cognitive abilities underlying this capacity
have long been debated (Asington, Harris and Olson, 1988).
An Australian study of
deceptive behaviour in young children using mothers as observers, found that from three or
four until seven years of age, most children use strategies of denying, pretending and falsely
claiming credit, in order to avoid negative consequences or gain reward (Hoogenraad and
McKenzie, 1995). These are consistent with earlier findings by Ekman (1985) and by Perner
and Wimmer (1985).
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Children’s propensity to lie is generally thought to be related to their age and cognitive
development. Cashmore and Horsky (1987) and later Bussey (1992) suggested that older
child witnesses in sexual assault cases may be seen as less credible by juries, more likely to
lay false complaints or possibly as more blameworthy than younger complainants. They
argued that lying and truthfulness become increasingly subject to self-regulatory control. As
children are exposed to more lies from adults and peers, they learn to generate plausible lies
themselves; they become increasingly skilled at lying and their statements become more
credible with the result that observers are less likely to detect deception (Bussey, 1992).
While it can be accepted that children do not have a greater propensity than adults to lie, the
extent to which children tell the truth about a particular event may depend on what the child
perceives will happen as a consequence of the information they offer. A study by Lewis,
Stanger and Sullivan (1989) suggested that children can deliberately lie at age three in
relation to their own misdeeds. Bussey (1990) found that five-year olds were more likely to
lie than three-year olds.
Hoogenraad and McKenzie (1995) found that children in the age range of three to seven
years will engage in deception for the purpose of self-interest. They note that children up to
the age of seven employ strategies of denying, pretending and falsely claiming credit in order
to avoid negative consequences or to gain reward. Ceci (1990) and later Bussey (1993) found
that three-and-a-half to four-year old preschool children may lie to protect someone they like
from punishment. In keeping with Ekman (1985) noted earlier, Ceci identified motives of
personal aggrandisement, protecting a loved one, avoiding embarrassment, sustaining a game
and conforming to a stereotype underpinning the lies of very young children.
While it is clear that deception is a feature of children’s interactions, the central question
remains untested: would young children make false allegations of sexual abuse?
Some writers believe that children rarely lie about sexual abuse of their own volition, but they
may be pressured to lie to avoid negative consequences. Wakefield and Underwager (1989)
suggested that children do not intentionally lie, but they can be influenced by adults to make
statements about events that have not happened. Wakefield and Underwager (1989) argued
that, through a process of adult social influence, the adult interviewer may create stories of
abuse that become incorporated into the child’s memory. Taylor (1990) commented that a
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child could be forced to lie when a parent makes an allegation on behalf of the child for their
own reasons and Bussy (1992) argued that contamination of a child’s story is possible in
divorce proceedings, when a mother might have had the time and motivation to coach the
child to give misleading evidence.
Bussey (1992) found that "demonstrable" lying by children in sexual abuse cases is very rare,
and almost certainly lower than for adults testifying from the witness box. After a review of
various findings, Spencer and Flin (1990) estimated that about two per cent of allegations by
children of six years or less were fictitious, rising to 10 per cent for those over ten years.
Bussey (1993) also suggested that children may falsely deny or later retract information
related to an assault previously disclosed, due to fear of punishment, anticipated rewards for
lying, embarrassment or not wanting the perpetrator to get into trouble. False denial may be
as common as false allegation.
These studies suggest that children lie for many of the same reasons that adults lie. In this
sense an alleged child victim is no more but also no less a reliable witness than any other with
respect to events of personal significance.
In response to beliefs that some children make up stories out of malice or to get attention,
methods for identifying false reports have been developed. Statement Validity Assessment
(SVA), a diagnostic technique developed in Germany, is sometimes used to assess the
validity of a child's allegation (Steller, 1989; Steller and Koehnken, 1989). SVA includes a
process known as criteria-based content analysis, which allows a statement to be
systematically assessed by means of defined criteria. This analysis assumes that descriptions
of events that actually happened differ in content, quality and expression from those that are
invented.
The absence of any particular criterion does not necessarily mean that the
statement is false, but the presence of most would indicate that the statement is true.
In recent decades children’s evidence has been deemed inadmissible in several high profile
criminal proceedings partly because it could not be proven that they understood the
difference between truth and lies (Hatty, 1991; Wittaker, 1991).
However, several
researchers have noted that there is no evidence that the present competency test is a valid
measure of the likelihood that the child will tell the truth (Taylor, Geddis and Henaghan,
1990; Bussey, 1992). While research has shown that children as young as four years can
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differentiate a lie from a truthful statement (Haugaard and Crosby, 1989), it does not
necessarily follow that they will tell the truth. Bussey (1992) concluded that, where
truthfulness is no more favourably rewarded than lies, pre-schoolers are less likely to be
truthful. Under the present test of competency, children can show they are capable of telling
the truth, but then choose to not do so. A caution that children may not have an adult
understanding of the truth or may not adhere to it if they do would be more useful than a test
of competency that may mislead.
8
Distinguishing fact from fantasy
Children have highly imaginative minds: they may have imaginary friends, imbue dolls with
personalities or take on the roles of superheroes in play and over many years there has been
debate about whether children can actually distinguish fact from fantasy.
In the 1692 Salem Massachusetts witch trials, the testimony of girls aged between five and
twelve was assumed to be so reliable that many people were hanged as witches on the basis
of their evidence (Dale, 1993). Although later investigation concluded that some of the
witchcraft allegations were actually due to erogitism-poisoning by a fungus contaminating
rye causing hallucinations that were interpreted as bewitchment, rather than children
fantasising (Goodman, 1984), in reaction to this, children were long held to be unreliable as
witnesses, incapable of distinguishing their fantasies from actual events. However, there is
now realisation that children have been undervalued as witnesses (Davis and Stevenson,
1986), particularly in relation to allegations of sexual abuse (Dale, 1993).
Laboratory studies have found that children can perform as well as adults in separating actual
memories from other perceptual sources such as imagined images (Johnson and Foley, 1994).
Adults have sometimes mistaken a child’s genuine allegation of sexual abuse for a product of
imagination, possibly due to an adult’s unwillingness to face the reality that their child has
been sexually abused (Taylor, 1990). Other researchers have concluded that, when a child
describes a sexual experience in vivid detail, it is unlikely that the child has created a fantasy.
“When a five year old provides a clear-cut verbal description, dramatic enactment, or
pictorial representation of an erect discharging penis, or of vaginal or anal penetration, it is
unlikely that such a memory has been invented.” (Nucrome, 1986, p 474)
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Similarly, Greene (1990) noted that while children may have numerous fantasies about sex,
those fantasies tend to be vague and not concrete in their descriptions. Greene concluded that
when children play activities they consider to be sex, their concept of sex is revealed to be
quite different from the types of things that adult child abusers actually do.
9
Suggestibility
Consistent with Wakefield and Underwager (1988) and Loftus and Ketcham (1991), Kuehnle
and Cowan (2009) asserted that, at all ages, memory of experience is reconstructed, with
autobiographical recall filtered through current beliefs, knowledge, expectations and
motivations. Memories are always subject to influences, the extent of influence depending
on the suggestibility of the individual. Children’s vulnerability to contamination of their
episodic memory (memory for specific events, as opposed to accumulated knowledge) is
increased with repetitive and delayed interviews containing requests for speculation or
misinformation and very young children are the most vulnerable to suggestive interviewing.
Nevertheless, some children have been found to be remarkably resistant to false suggestions
(Harris, Goodman, Augusti, Chae and Alley, 2009). Taylor (1990) reported that, while it is
generally held that children are influenced by questions of a leading nature such as “He took
your pants off, didn’t he?”, recent research has demonstrated that children as young as four
years of age are far more resistant to such suggestive questioning than formerly believed.
Taylor concluded that, while some children will provide the answers that adults seem to want
in relation to peripheral events that could have occurred but did not, when the question refers
to central events and actions that lie within the child’s understanding, then suggestive
questioning is likely to be rejected.
Vulnerability/resistance to suggestion has been found to be related to many specific
personality variables, including self-confidence (Vrij and Bush, 2000), creativity (Shapiro
and Purdy, 2005), intelligence (Chae and Ceci, 2005; Eisen, Goodman, Qin, Davis and
Crayton, 2007), cultural beliefs and expectations (Bottoms, Shaver and Goodman, 1996;
Goodman, Quas, Batterman-Faunce, Riddlesberger and Kuhn, 1997). However, the
predictive power of these variables is too weak to be useful for Court purposes and interview
factors are more likely to be determinative.
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Research has shown that both adults and children are susceptible to altering their accounts of
an event in response to cues from the questioner. Some researchers have concluded that
suggestive material can overwrite the previous memory, creating a false new memory (Loftus
and Palmer, 1974). Zaragoza (1987) found that people tend to incorporate information about
an event from different sources into memory and, to the extent that new information is
inaccurate, the testimony will also become inaccurate.
However, rather than actually
impairing memory, misleading information may be incorporated into testimony because the
witness is capitulating to demand or other pressures.
There are several possible explanations for children's tendency to accept misleading
information. In keeping with Melton (1981), both Lees-Haley (1988) and Misener (1991)
found that smiles, warmth and positive remarks in response to some of a child's answers and
frowns, coldness and negative reactions to others, can shape the child's account. Misener
(1991) suggested there are a number of explanations for children’s tendency to accept
misleading information:

children may wish to please the interviewer

the adult interviewer’s non-verbal cues might suggest the type of response which will
be rewarded or punished, particularly if the interviewer is an authority figure

children may believe that the adult interviewer’s suggestions as to what occurred are
more reliable than their own recollections.
Kuehnle and Cowan (2009) noted that children are very familiar with being tested on their
knowledge by adults who know all the answers. They are much less familiar with adults
questioning them to collect information unknown to the adult.
Ceci, Ross and Toglia (1987) found that children may believe that the adult interviewer's
suggestions as to what occurred are more reliable than their own recollections.
They
demonstrated that young children's susceptibility was due, at least in part, to the fact that they
are likely to conform to whatever they believe to be the expectation of the adult. Zaragoza
(1987) similarly found that children may wish to please the interviewer and King and Yuille
(1987) reported that children volunteered that they had "gone along" with misleading
suggestions. The adult interviewer's cues might suggest the type of responses that would be
rewarded or punished, which would be particularly influential if the interviewer is an
authority figure (Melton, 1981). Green and Schetky (1988) suggested that this problem may
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be particularly likely to occur in family dispute cases, where adult influence might lead a
child to make statements about sexual abuse which may not be true.
In family dispute cases where an adult parent has complained of abuse, a child may
incorporate into their answers during interviews misleading information that has been put to
them in a leading question about something that the child observed, even though that
information conflicts with what the child has remembered in free recall. Wakefield and
Underwager (1994 ) commented that, while studies have shown that both adults and children
are influenced by leading questions, their own study found children to be more suggestible
than adults and younger children to be more suggestible than older children. In keeping with
this conclusion, Dale (1993) found that, although both adults and children are suggestible
during questioning, children are more susceptible to suggestion under certain circumstances:

when they are younger

when they are questioned after long delay

when an intimidating person interviews them

when the questioner makes strong suggestions and repeats them often

when more than one interviewer makes the suggestion.
Wakefield and Underwager (1994) noted that the suggestions made in a typical suggestibility
experiment are much weaker than those that are made in interviews related to real cases of
alleged sexual abuse. In experiments, children are presented with misleading information
once and asked two or three misleading questions; while in real life interviews, young
children often face many leading questions and significant pressure to confirm the allegation
of abuse.
The possibility that a child might come to believe that they have been sexually abused when
they have not is of serious concern, because in that case the interrogation has distorted the
child’s inner reality. Gardner (1991) suggested that children who come to believe a
suggestion that they have been sexually abused may develop psychosis as a consequence.
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10
Comprehension of Questions.
Children’s ability to fully understand questions is fundamentally important in assessing the
credibility of disclosures of sexual abuse.
In some situations, children seem able to
comprehend questions and give answers, while in other situations children find it difficult to
understand and answer questions.
Taylor (1990) commented that the system of cross
examination that children are exposed to during a criminal trial is problematic, because young
children do not always respond well to direct questioning and cannot readily produce
accurate answers to questions out of context. Taylor further commented that questions that
require abstract inferences about other people’s motivation cause difficulty for young
children. Sometimes the answers children give to questions suggest that either the child did
not understand the question or the questioner did not fully understand the child’s answer. In
the latter case, this can result in perception that the child’s responses are self-contradictory
when in fact the child is just being literal.
Berliner and Barbieri (1984) demonstrated the problem of adult-child misunderstanding with
the case of a five-year-old girl being cross-examined by her father’s lawyer:
“Lawyer: And then you said you put your mouth on his penis.
Child:
No
Lawyer: You didn’t say that?
Child:
No
Lawyer: Did you ever put your mouth on his penis?
Child:
No
Lawyer: Well, why did you tell your mother that your dad put his penis in your
mouth?
Child:
My brother told me to.” (Berliner and Barbieri, 1984, p 125)
Such testimony might lead a jury to believe that the child had rescinded her earlier story, a
fabrication initiated by her brother. However, counsel for the prosecution recognised the
misunderstanding and clarified the child’s responses.
“Lawyer: [Name], you said that you didn’t put your mouth on daddy’s penis. Is that
right?
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Child: Yes.
Lawyer: Did daddy put his penis in your mouth?
Child: Yes.
Lawyer: Did you tell your mom?
Child:
Yes.
Lawyer: What made you decide to tell?
Child: My brother and I talked about it, and he said I better tell or dad would just
keep doing it” (Berliner and Barbieri, 1984, p 125)
Taylor (1990) argued that limitations on children’s understanding of questions should not be
used as an excuse to lessen their involvement in the justice system. Rather, the onus should
be on lawyers and Judges to use methods that allow for these limitations so that complete and
accurate information can be obtained from the child.
In an extensive discussion of this issue, Gould and Martindale (2009) provided many
examples of the ways and reasons why children may misunderstand questions from adults
and many examples of the ways and reasons why adults may misunderstand children’s
answers, although the failure to understand may not be apparent. These include:

Very young children use language in highly idiosyncratic ways and may not
understand the usual meaning of words they appear to be using competently, so the
intended meaning of a sentence may be quite different from the received meaning and
questions may be answered without being understood.

While it is obvious that sophisticated legal language may not be understood, very
young children may not understand the meaning of simpler words like “any”, “big”,
“promise”, “move”, “touch” or “at the bottom of”; or understand the differences
between “yesterday/today/tomorrow”, “under/over”, “above/below”, “in front of
/behind”, “before/after”, “always/never”, “let/make”, “ask/tell”, “know/think”,
“guess/be sure”, “neither/either/another/each”, “more/less”, “different/same”,
“forget/remember”, “first/last”, “inside/outside”, “some/all”, “come/go”, “bring/take”,
“here/there”.

Very young children often confuse pronouns, so they may say “my house” when they
mean “your house” or “his” when they mean “her”.

Children may only be able to attend to one part of a compound question and will
therefore only answer that part, though their answer may appear to refer to all parts.
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
Children may not realise it is acceptable to say they do not understand a question and
will therefore attempt an answer anyway.

Sentences that contain negatives (“Did you not see...” and particularly double
negatives “Is it not true that you did not see...” are often not understood, so the
question answered may not be the question asked.

Passive voice may not be understood.

Tag questions (“It’s sunny, isn’t it?”) are highly suggestive to children.

Children may not understand that they can give other answers to forced choice
questions when none of the options offered are true.

Children may have a very concrete understanding of words based on their own
experience, so they may deny “visiting a doctor”, because that is not their
understanding of what “visiting” means.
11
Reliance on expert evidence
Children are not permitted to provide evidence directly as witnesses in Family or Federal
Magistrate Court proceedings, so Federal Magistrates and Judges are heavily reliant upon
experts to interview both the child who is the subject of the allegation of abuse as well as the
alleged perpetrator, in order to determine whether the alleged perpetrator presents an
unacceptable risk of abuse to the child or whether a finding of sexual abuse should be made.
In order to avoid parties engaging advocate experts, employed to pursue a particular outcome,
to avoid lengthy trials and to prevent any alleged child victim being interviewed by multiple
experts, the Family and Federal Magistrates Court have turned to the use of single experts to
provide evidence in proceedings where there are allegations of child sexual abuse.
Because victims of sexual abuse are often very young children, experts must have particular
skills and knowledge in order to provide credible, accurate, and reliable opinion based on the
uncontaminated evidence of children and the expert’s clinical assessment of the alleged
perpetrator. Given the problems associated with disclosures of sexual abuse of young
children, there is a need for experts in this area to have a high level of specialist professional
training within forensic psychology. Internationally, there has been a paradigm shift within
the field of child custody evaluations, from a clinically based model that emphasises clinical
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judgement, to a forensic model that emphasises the gathering of reliable data using tested and
approved methods and procedures. Forensic psychology skills are significantly different
from therapeutic skills or social work skills.
Currently, no formal Australian guidelines exist to define how experts should conduct such
interviews, the types of tests and questions that should be or should not be used or the age
limits within which they are meaningful and those delivering "expert evidence" in Australian
Family and Federal Magistrates Courts rarely have the training, knowledge and skills needed
to do this type of work adequately. Currently experts are often sourced by solicitors for the
parties or by independent lawyers for the children. They may hold various qualifications and
prepare their reports using the skills and practices of their own professional training, rather
than a set of forensic psychology guidelines for interviewing children of various ages.
This article, Part 2, follows up the exploration of problems associated with children providing
disclosures about sexual abuse with an exploration of common problems associated with
experts providing opinion about whether there is an unacceptable risk of abuse related to that
disclosure, including the advantages and disadvantages of single experts, multiple experts and
the practice of hearing evidence from more than one expert concurrently and the general
failure of these methods to deliver expert evidence of uniformly high quality.
This paper concludes that, given the crucial role of expert opinion evidence concerning
unacceptable risk in child sexual abuse cases and the clear need for highly specialised skills
to do this work well:

There is need for a well-founded and clearly defined set of best practice guidelines for
interviewing children and giving expert evidence in the Family Court of Australia or
the Federal Magistrates Court, including a requirement for audio-visual recording of
all interviews.

All experts providing evidence in cases involving allegations of child sexual abuse
must be appropriately qualified in forensic psychology.

Training towards an appropriate qualification to provide evidence in child sexual
abuse cases, probably as a postgraduate degree (Masters in Forensic Psychology),
must be available in one or more Australian universities, with the requisite
competencies approved by the office of the Federal Attorney General.
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
All consultants employed by the Child Dispute Service to prepare Family Reports
should be required to undertake study towards this qualification and comply with the
guidelines.

In cases before the Federal Magistrates or Family Court involving allegations of child
sexual abuse, single experts should be independently appointed from a panel of
appropriately qualified experts, with accreditation requirements administered by the
office of the Federal Attorney General.
12
Family Reports
Brown Fredrico, Hewitt and Sheehan (1998) found that cases proceeded much more quickly
when child abuse allegations had been investigated and substantiated in a report by a child
protection agency and a Family Report was available, which reduced the stress of
proceedings on the children involved. In response to these findings, pilot project Magellan
was established, in which specific procedures intended to reduce stress on children were
introduced to 100 cases before the Family Court that involved allegations of serious child
abuse, including child sexual abuse. Procedures included assessment through a Family
Report and appointment by the Court of an Independent Children’s Lawyer. Evaluation
showed success in reducing trauma to children by reducing delays and avoiding duplication
of bureaucratic procedures (Brown et al, 2001).
The Australian Family Court now provides a counselling and mediation service, known as the
Family Court Child Dispute Service (CDS), for clients of the Family Court or Federal
Magistrates Service. While the CDS may be involved at many stages of proceedings, one of
the main services provided is preparation of Family Reports. A Family Report is a
“professional appraisal of the family from a non-legal and non-partisan perspective...
contributing to informed and child-centred judicial decisions” (Family Court of Australia,
2000). Family Reports are now routinely ordered when there is family conflict and concern
that the behaviour of a family member may pose a threat to the welfare of the child, because
children are rarely interviewed directly by the Court (Family Court of Australia, 2000; Neoh
and Mellor, 2009). The CDS consultants who prepare Family Reports are mainly social
workers or psychologists by training and the Reports are based on structured and unstructured
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interviews with family members, as well as observation of interactions between them,
conducted over one or two days.
Family Reports cannot comment on facts, such as whether or not the alleged abuse occurred,
but are required to be balanced representations of all sides and focused on the best interests of
the child (Melton, Petrila, Poythress and Slobogin, 1997). They may provide information
about family dynamics, which may suggest whether or not sexual abuse is likely to have
occurred (Dessau, 1999; Chisolm, 2002; Neoh and Mellor, 2009), but judgement is left to the
Court, which may disregard opinions expressed in Family Reports (Nikou, 2002).
13
Expert witnesses
In cases where serious maltreatment such as sexual abuse of a child has been alleged,
additional experts may be nominated by the Court or agreed to by all parties and employed
privately by the family as a single expert witness.
The Family Law Rules 2004 define expert witness as “an independent person who has
relevant specialised knowledge, based on the person's training study, or experience” and an
expert report is a report prepared by such a person. An expert witness must be independent
and has a duty to the Court that transcends any duty to a party. The position of an expert
witness is distinguished from a person who may have similar specialised knowledge, but is
called to give evidence primarily because of their involvement with a party or a child. A
teacher, medical practitioner or other person, who may otherwise be regarded as an expert,
may give factual evidence of their involvement with a party or a child, but may not to give
opinion evidence.
Expert evidence is privileged in that it is opinion based on specialist knowledge, as opposed
to evidence of facts (Ingram, 1995), but many writers have argued it is nevertheless open to
bias. In an adversarial system, where expert witnesses are called by the parties and not by the
Court, parties are free to “shop around” for an expert who will give the opinion they want the
Court to hear and to not present any report that does not supports the commissioning party’s
case (Freckelton, 1986; Spencer, 1987). Expert witnesses have been described as “hired
guns” (McDougall, 2004), who “do battle like gladiators or fighting cocks with their lawyers
acting as ringmasters” (Selby, 1984, p11). Walsh (1991, p70) argued that in cases involving
child sexual abuse “the expert often identifies with the party who is calling them and quite
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often is cause driven as distinct from issue driven” and that experts with predetermined views
should not be permitted to investigate and testify in cases of child sexual abuse.
Since the late 1980s, writers including Spencer (1987) have argued that these problems could
be alleviated, if expert witnesses were called by the Court rather than by the defence or the
prosecution. In 2004 the Federal legislature addressed this issue by sanctioning the use of
single experts, despite opposition from professional groups and interested parties including
the Family Law Section of the Law Council of Australia. Rule 15.44 and 15.45 of the Family
Law Rules provides that parties or the Court are able to appoint a single expert to provide
expert evidence in proceedings before the Family Court and in rule 15.49 the legislature
discourages the use of experts that are not single experts. Additional expert witnesses may
only be called with the permission of the Court in instances where “there is a substantial
body of opinion contrary to any opinion given by the single expert witness and …the contrary
opinion is or may be necessary for determining the issue; another expert witness knows of
matters, not known to the single expert witness, that may be necessary for determining the
issue; or there is another special reason for adducing evidence from another expert witness.”
A single witness may be appointed by agreement between the parties or, when parties do not
agree, by order of the Court. The Court may select from a list prepared by the parties or may
require the parties to agree on a single expert and the instructions to be provided to the expert.
The Hon Justice Peter Rose declared the change to single experts a success and noted:
“A criticism ...of the opportunity for an expert witness to be called by each of the parties in
relation to the same issues is that there has been has been tendency for such witnesses to
become advocates in the cause of the party who has called that witness.... It is recognised
that the pressure that is placed on the expert witness in those circumstances is exacerbated
by the... team environment in which the witness becomes an integral part of the battle or
campaign against the other ‘team’, in which the prize is a ‘win’, rather than an outcome of a
dispassionate resolution of the issues which are the subject of the expertise of the relevant
witnesses.” (Rose, 2009, p2)
Justice Rose noted that benefits include:

“Prospects of settlement have increased;
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
Legal costs and witness expenses have dramatically reduced;

Delays in awaiting trials have also reduced; and

The length of trials have shortened.” (Rose, 2009, p3)
Rose also noted the United Kingdom experience that:

“Single experts are more impartial

Single experts see their duty as being to the court

The process saves time and money

Single experts assist in levelling the playing fields between parties with unequal
resources

Single experts increase the prospect of settlement.” (Rose, 2009, p4)
When issues are relatively straightforward, a single expert opinion should suffice, but matters
before the Family Court are sometimes not straightforward, so single witnesses may not be
appropriate in every case. Downs (2006) urged caution in relation to single expert reports
because there is usually no way of testing whether their conclusions are correct. He noted
that the ultimate decision-maker must always be the Judge, with expert opinion playing a
subservient role, preferring to determine a matter by hearing evidence presented by both
sides, when two sustainable perspectives are available.
On occasion multiple experts provide concurrent evidence in a process known as “hottubbing”, where two or more experts are sworn in at the same time and placed in the witness
box together, to give evidence and answer questions at the same time (McClellan, 2008).
They may also be required to undertake a “conferencing of the experts” to prepare a Joint
Experts’ Report, setting out the areas of agreement and disagreement between the experts.
This practice allows the Judge, Magistrate or Commissioner to focus attention on the issues
that need to be resolved. While this process is more commonly used in the New South Wales
Land and Environment Court and in the Administrative Appeals Tribunal, Justice Rose has
used concurrent evidence in the Family Court.
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Benefits of concurrent evidence over the traditional process include:

All the evidence on each topic is given at the same time.

Refining of issues into areas of agreement and disagreement before cross examination
saves time and quickly focuses the Court’s attention on issues that are disputed.

Cross examination with all experts present allows them to immediately be asked to
comment on answers of colleagues.

Experts are less inclined to act in an adversarial manner in this environment.
A 2002 study by the Administrative Appeals Tribunal of the use of concurrent evidence in
the New South Wales Registry concluded that concurrent evidence is generally effective and
broadly liked.
14 Interview techniques
As noted earlier, serious errors in interview practices have led to spectacularly flawed
evidence in several high profile criminal cases involving allegations of child sexual abuse.
One of the first US multi-victim multi-offender (MVMO) child abuse criminal cases involved
the McMartin Preschool in Manhattan Beach, California. It was the longest US criminal trial
in history and the most expensive, taking six years and costing the state US$15 million, yet it
resulted in no convictions.
When the District Attorney decided to not prosecute in relation to a single complaint of
molestation, due to lack of physical evidence or confirmation from other children, the local
Chief of Police circulated a "strictly confidential" letter to 200 parents suggesting that a
McMartin staff member may have forced the children to engage in oral sex, fondling of
genitals, buttocks or chest area and sodomy, urging parents to question their children, seeking
confirmation. A local television station escalated the story by speculating that the preschool
might be linked to child pornography rings and various sex industries in nearby Los Angeles.
Arguably this created a degree of mass hysteria in the community. Soon 360 children were
diagnosed as having been abused, following interviews by police and by the Children's
Institute International. Medical examinations of 150 children concluded that about 120 of
these had been sexually abused, despite there being no physical evidence.
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The specific complaints of abuse emerging from these interviews included that the children:

were forced to submit to millions of "kiddy-porn" photographs being taken and to act
in pornographic movies

saw the mutilation and killing of animals including stabbing of a sea turtle

were forced to engage in Satanic rituals including ritual murder of infants and
drinking of a baby's blood

saw dead and burned babies, flying witches, movie stars and local politicians

were forced into a coffin and buried

were molested in a market and in a car wash

were taken by aeroplane or by hot air balloon or were flushed down toilets and
travelled through sewers to a place where they were abused

were taken through trapdoors in the floor of the centre, through underground tunnels
to rooms both above and below ground, where they were abused.
Despite a lack of confirmatory physical evidence such as actual trapdoors, tunnels or airline
records (physical evidence amounted to a pair of rabbit ears, a black cape and some black
candles, produced to substantiate allegations of satanic ritual abuse), 208 counts of child
abuse involving 40 children were laid against seven adults. The state offered the defendants
immunity from prosecution or leniency if they were willing to testify against the other
defendants, but none took up the offer. After a change of District Attorney, all charges
against 5 of the adults were dropped. After three years of testimony and nine weeks of
deliberation, one of the remaining two defendants was cleared of all charges and the other
was cleared of most, with the jury divided about the remainder. After a second trial, the
second jury has also divided and the prosecution decided not to proceed with a third trial.
Commentary on this case has generally concluded that this colourful list of unsustainable
allegations was the inevitable result of very young children being pressured by parents, CII
interviewers using leading and suggestive questions and rewards being given for providing
the "right" answer, that is confirming that the children had been sexually abused (Eberle and
Eberle, 1993; Nathan and Snendeker, 1995). In this case and some subsequent cases, critics
have pointed to the presence of leading and suggestive questions in interviews and the use of
repetitive interviews serving to contaminate the children's evidence. It was suggested both
that the children had been coached and that repeated interviews and questioning had
encouraged children to create new answers, hoping to satisfy the adult questioner.
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Wilson (1986), noting that some prosecutors “grilled” the alleged child victims for hours and
pressed them to confirm the alleged incidents of molestation, suggested that desire to end
such stressful questioning might provide sufficient motive for children to give any answer
that seemed required. In one Minnesota case discussed by Wilson, children were questioned
up to 29 times by five different investigators, often using highly suggestive questions.
Commenting on the Australian MVMO case involving the Seabeach Kindergarten at Mona
Vale, Sydney (known as the “Mr Bubbles” case), the Woods Royal Commission 1997 found
that police investigations into the allegations made by the children were inadequate for
reasons which included that investigators lacked necessary training, that the children were
interviewed on multiple occasions and that evidence was contaminated by inappropriate
questioning techniques, noting it was consequently no longer possible to determine whether
there was any truth in the underlying allegations or not.
As noted earlier, various factors have been shown by research to adversely affect the witness
capacities of children from toddlers to elementary school. Kuehnle and Connell (2009) listed
five:
1. Children’s tendency to be reticent and generally uncommunicative with unfamiliar
adults
2. Children’s familiarity with being tested by adults (where adults know the correct
answers), and lack of familiarity with adults asking questions to gain information not
known by the adults
3. Children’s poorer linguistic skills
4. Very young children’s poorer memory for events
5. Children’s tendency to forget information more quickly.
Kuehnle and Connell (2009, p390) noted:
“Interviews of children are challenging in general because of the limitations of
children’s verbal development and imperfect capacity to narrate events to adults in a
logical chronological sequence. The interviewer is typically a stranger to the child and
must maintain the child’s co-operation, attention and effort while attending to critical
distinctions between well-phrased and poorly phrased questions. Even well-trained
and experienced interviewers are vulnerable to errors that can significantly affect the
accuracy of children’s reports.”
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Studies have shown that both mental health and law enforcement professionals may
encourage false accusations of sexual abuse through inappropriate interviewing methods.
Often police and caseworkers have received little or no training in how to conduct interviews
to assess the validity of a child's allegation of sexual abuse. However, the issue is not only
the lack of appropriate training but that they may inappropriately apply interviewing skills
learned for a different purpose: therapeutic interview skills are inappropriate from an
investigative perspective, while standard interrogation skills are inappropriate for
interviewing small children.
Due to origins as a therapeutic technique for children known to have been abused, the
assessment interview has traditionally been predicated on an assumption that abuse has taken
place. Its use as a diagnostic technique has therefore led to criticism. Dent (1988) found that
when interviewers did not know the facts beforehand, they tended to draw a conclusion at an
early stage and then attempt to obtain confirmatory information from their young witness. In
the United Kingdom, the Report of the Advisory Committee on the Investigation, Detection
and Prosecution of Offences Against Children (1986, p 20) concluded: "This may lead to the
phrasing of highly suggestive questions and lack of receptiveness to relevant information that
does not fit into the interviewer's preconceived version." Similarly, Byrne (1991) commented
that interviewers can lose objectivity by becoming emotionally or professionally aligned with
one side of the dispute and that there is a grave danger that over-zealous police and other
professionals will readily assume that accused persons are guilty when they investigate
allegations, thinking of one party as “the offender” and another as “the victim”.
Research by Ceci, Bruck and their associates has been particularly valuable in demonstrating
how poor interviewing techniques have a high risk of eliciting false reports from children.
Ceci, Loftus, Leichtman and Bruck (1996) found that in some cases, not only could preschoolers be convinced that what is false is actually true, but they could fool adults into
professing confidence in their accuracy. They raised concern that false memories cannot be
detected because children who have been repeatedly encouraged to imagine events that have
not occurred, have come to believe that they are accurately recalling real events.
Given their limitations with free recall, it was commonly thought that children perform better
in response to questioning, but research has made clear that any questioning of children
should be done with great care. Dent (1988) for example, found that children of 8-12 years
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were as accurate as adults in recalling a lived event by free recall or in response to general,
open-ended questions, but that the children were less accurate, that is had a greater proportion
of incorrect recall, when asked specific, more clearly directed questions. This suggests that
people involved in questioning children should try to encourage free recall, only using
specific questions as a last resort.
Recognising the complex interaction of variables operating when dealing with child
witnesses, from the late 1980s onward, many writers have suggested guidelines for
interviewing allegedly abused children, usually including:

The child should be interviewed alone, at a neutral location, by a professional.

Neither parent nor any other authority figure should be allowed to be present.

The interviewer must establish rapport with the child and explain the purpose of the
interview.

The interview should be recorded so that the interaction can later be analysed for any
contaminating influence.
Raskin and Yuille (1989) identified several considerations for analysing each interview:

What was the quality and type of evidence obtained from the child?

What are the child's developmental level and specific language abilities?

How deep is the child's sexual knowledge and what are the sources?

How many prior interviews have there been and in what context?

What are the roles and relationships of the interviewer with the child?
Studies by Goodwin and Saywitz (1990) indicated that a supportive environment may be
helpful to accuracy, especially for younger children.
Initial discussion should be used to
establish the child's verbal ability and then the interviewer should begin by encouraging a
free recall narrative. After the child has finished, open-ended questions should be asked.
Only if more detail is needed, should be more specific questions be asked with great caution
to prevent leading.
McIver, Wakefield and Underwager (1989) asserted that verbal reinforcement such as
"good", "that's right" or close attention from the adult can increases the chance that the child
will give answers they believe the adult wants to hear.
If an interviewer feels the child is
showing signs of suggestibility, this can be assessed at the end of the interview by the use of
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suggestive questions unrelated to the incident (Raskin & Yuille, 1989; Steller & Koehnken,
1989).
Taylor (1990) argued that, because some children say so little in response to open
questioning, untrained investigators may be tempted to ask suggestive questions in order to
gain more information and Oates (1990) suggested that questions asked of children must be
simple, brief and reasonably concrete.
Wakefield and Underwager (1994) argued that the child should be told that the interviewer is
only interested in what the child remembers and that memory failure or memory gaps are
expected. They proposed that interviewers should begin any interview with children by
saying: “I don’t want you to say something that didn’t happen, but if something did happen, I
want you to tell me about it.” They argued that questions should not be repeated, because this
suggests to the child that their previous answers were not acceptable, They also said that
discussions of “good touch” and “bad touch” cause confusion and therefore should be
avoided.
15
Use of memory aids
A variety of “memory aids” including anatomically detailed dolls (dolls with genitalia), props
like puppets, dollhouses or telephones and play materials like paints, crayons and play dough
have been widely used to help children describe experiences of sexual abuse during
interviews. These aids are intended to assist the processes of memory retrieval and reduce
self-consciousness and embarrassment by allowing the child to tell their story indirectly and
have often been specifically recommended for use when interviewing very young children.
Conte, Collins and Fogarty (1991) found that 92 per cent of surveyed US professionals
conducting child abuse evaluations used anatomically detailed dolls.
However, the use of memory aids, particularly anatomically detailed dolls, has also been
strongly criticised, particularly when used with very young children (Freeman and EstadaMullaney, 1988; Underwager, 1988; Levy, 1989; McIver, Wakefield and Underwager, 1989).
Levy (1989) argued that many problems associated with doll use stemmed from the diverse
interviewing methods that professionals employed in conjunction with dolls, because there
was no standard practice and training for doll use was minimal or non-existent. Underwager
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(1988) found no difference between non-abused and abused children in their comments about
the dolls or their behaviours in play with them. Boat and Everson (1987), White (1988) and
McIver, Wakefield and Underwager (1989) all found that use of dolls could stimulate
demonstrations of sexual abuse by non-abused children. Children were particularly likely to
demonstrate aggressive and sexual acts that had not occurred when the interviewer asked
leading questions, cued and encouraged the child. McIver et al concluded that, when an
interviewer uses leading questions, cues, modelling and reinforcement, there is no difference
in behaviour or responses to the dolls between abused and non-abused children and argued
that the observed sexual play with anatomically detailed dolls by non-abused children could
lead inexperienced interviewers to believe that the children had been sexually abused.
Taylor, Geddis and Henaghan (1990) found that anatomically detailed dolls could be
effective in facilitating a meaningful exchange with children about their sexual knowledge
and experience, but argued that the effectiveness of this tool depends upon the skill of the
user. They also noted the need to document exploratory and play behaviours with such dolls
by young children who have not been sexually abused for comparison, so practitioners can
more readily distinguish signs of abuse from normal exploratory play. Goodman and Aman
(1990) concluded that, while use of anatomically detailed dolls with very young children is
controversial, they can be useful for eliciting information from older children. They found
that both anatomically detailed and regular dolls, as well as other props, aided five year-olds
more than three year-olds in recounting a staged event and that three year-olds were generally
more suggestible through misleading questions than five year-olds. Prop use increased rather
than decreased age differences in the accuracy of recall. Based on these findings, they argued
that anatomically detailed dolls do not foster false reports of abuse in five year olds. As
noted earlier, cases involving allegations of child sexual abuse in the Family and Federal
Magistrates Courts usually involve children younger than five years.
Wakefield and Underwager (1994) argued that there was no basis for the expectation that a
child who is unable to talk about what happened will be able to accurately demonstrate an
event using a doll and that children may actually learn about sexual practices from untrained
interviewers placing the dolls in sexually explicit positions when asking children what
happened to them.
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Bruck, Ceci, Francouer and Renick (1995) similarly warned that the use of anatomically
detailed dolls with very young children can allow the creation of multiple memory sources,
allowing real memories to co-mingle with fictional suggestions. They asked three year old
children to show what happened in a routine medical examination using anatomically detailed
dolls.
While the majority of demonstrations were accurate, some children inaccurately
reported genital touching including insertion of a finger into the anal or genital cavity,
regardless of how they were questioned and regardless of whether they had received a genital
examination at all. Similarly, De Loache and Marzolf (1995) found that two and a half, three
and four year old children had difficulty describing what had happened in a staged game,
using the doll as self-representation. They provided more correct information in direct verbal
and nonverbal responses to the interviewer's questions than they demonstrated on the doll.
These studies suggest that anatomically detailed dolls may serve as an aid to uncovering the
truth, rather than acting as a source of evidence contamination, only when children are old
enough to understand this form of representation and only when used by suitably trained and
experienced interviewers.
16
The science of expert opinion
Many critics of expert evidence in this field have suggested that the science underpinning
opinions is dubious and or that the experts may be tempted to do more than provide a factual
basis for the Court’s decision making. Stephen and Newman (1994) warned that legal
professionals must avoid the belief that what the expert offers is purely scientific. They
argued that the form of expert opinion heard in child sexual abuse cases is often a blend of
“expert knowledge, theoretical preferences, beliefs derived from the expert’s unique set of
past clinical cases, inferences and interpretations drawn from interviews with and
observations of the principle actors in the case, predictions of future behaviour, and
individual character, values, intuition and judgment.” (Stephen and Newman, 1994, p181).
Walsh (1991) argued that because experts base their evidence about what they have learned
from theoretical and research literature, it is important that the Court be placed in a position
where it knows precisely upon what materials the expert based his or her opinion. Experts
have sometimes been accused of misinterpreting or misrepresenting the work of others and
certainly it is appropriate that expert witnesses provide information to the Court about their
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methods, their assumptions and the research underpinning these and the degree of certainty or
doubt remaining in their conclusions.
However, the forensic science of assessing allegations of child sexual abuse has advanced a
great deal in the past 20 years. The issue is now less whether it is possible to elicit reliable
evidence from children and more whether methods known to be effective are being used in
practice.
“Remarkable contributions have been made by social science researchers and
theoreticians to an understanding of the conditions under which children make errors
in reporting and the ways to enhance accurate reporting. This is a heavily researched
area with increasingly refined research paradigms so that generalizability to clinical
practice is supportable.” (Kuehnle and Connell, 2009, p389)
According to Kuehnle and Connell (2009) in their overview, research in the past two decades
has consistently shown that when interviews are conducted in keeping with best practice
recommendations, that is a neutral interviewer, open-ended questioning, no repeated,
suggestive questioning and no induction of a motive to make a false report, even very young
children’s recall will be very accurate, though limited in detail. This view is particularly
supported by the work of Baker-Ward, Gordon, Ornstein, Larus and Clubb (1993) and
Parker, Bahrick, Lundy, Fivush and Levitt (1999).
Conversely, research has consistently shown that children’s suggestibility errors increase
when contra-recommended interview characteristics are present, such as repetitive
questioning (Fivush and Schwartzmueller, 1995; Poole and White, 1995), biased questioning
and inappropriate reinforcement of responses (Goodman, Bottoms, Schwartz-Kenney and
Rudy, 1991; Tobey and Goodman, 1992; Lepore and Sesco, 1994; Ceci and Bruck, 1995;
Carter, Bottoms and Levine, 1996) and yes-no question pairs (Petersen and Bell, 1996;
Petersen and Briggs, 1997). The combination of suggestive questions with social pressure
has been shown to produce the highest number of errors (Garven, Wood, Malpass and Shaw,
1998; Garven, Wood, Malpass and Shaw, 2000).
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The issue is that there is no specific credentialing of forensic psychologists and no standard
set of practice guidelines to ensure that expert evidence provided in the Family Court and
Federal Magistrates Court will always be reliable.
17
Recognition of a specialist area of skill
Research, particularly that emerging in the past two decades, has revealed the very high level
of knowledge, skill and specific focus that is required of practitioners conducting forensic
interviews with young children if they are to be effective in eliciting reliable evidence and the
need for specialised training.
“Mental health practitioners entering the child custody field are stepping into a very
complex and formidable area of work... Some are skilled in forensic thinking and the
application of forensic methodology and procedures to psycholegal questions. Others
step into the forensic arena with a poor understanding of the differences between
clinical and forensic roles and responsibilities... as well as of standard forensic
methods and procedures... Many lack basic forensic training, while others do not know
about admissibility standards for expert witness testimony... Mental health
professionals who enter the forensic arena as it is currently structured need to be
prepared for participation in an adversarial process.” (Gould and Martindale, 2007, p
6-7)
“Interviews of children to determine sexual abuse should follow a research-based
protocol and should only be conducted by those with adequate specialized training.
They should be video-recorded to allow for analysis of the child’s statements and how
they were elicited.” (Kuehnle and Connell, 2009, p392)
While in the Family Court of Australia it is not the role of the expert witness to determine the
matter, but only to provide information, opinion and recommendations that will assist the
Court in determining the best interests of the child, this advice appears to be no less pertinent.
In the United States there have been increasing efforts to regularise expert evidence in many
areas of the law, including those related to allegations of child abuse.
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“In many contexts courts have increasingly demanded that expert testimony live up to
some reasonable standards. Confronted with ever increasing amounts of ‘junk science’
and studies of very dubious merit generated for the purpose of litigation, courts have
tried to better address issues of how information provided by experts is to be assessed.”
(Galazter-Levy, 2009, pxvii)
18
Guidelines
There are now a number of explicit guidelines available to forensic mental health
professionals involved in child custody evaluations, including some detailed protocols for
interviewing children in relation to allegations of child sexual abuse in a manner that will
facilitate recollection and construction of a reliable narrative of important facts, without risk
of contamination by the interviewer’s expectations.
These include The Cognitive Interview (Fisher, Geiselman, Raymond, Jurkevich and
Warhaftig (1987), The National Institute of Child Development (NICHD) Investigative
Interview Protocol (Orbach, Hershkowitz, Lamb, Sternberg, Esplin and Horowitz, 2000), The
Narrative Elaboration Technique (Saywitz and Snyder, 1993,1996) and the RATAC Method
(Walters, Holmes, Bauer and Vieth (2003). All of these methods include a generally
accepted structure and sequence of interview steps and all emphasise the superiority of recall
testing questions over recognition testing questions (Kuehnle and Connell, 2009).
Some earlier handbooks, while more clinical in orientation (eg Ackerman, 2001, revised
2006), remain useful as complementary reading in that they provide useful background
concerning cognitive development, the psychological dynamics of families in crisis and
guidelines for administration of psychological tests and do acknowledge the need for forensic
skills when conducting an evaluation related to child custody.
“To begin with, the evaluator should have formal training in forensic assessments, as
the sensitive nature of the evaluation consists of a specific style and a set of skills
unique to this experience... Mental health professionals are trained to perform the role
of clinician; however, one must clearly avoid this when performing a custody
evaluation. The nature of the evaluation is neither confidential nor clinical. There is no
role for treatment during this process... Trying to fulfil both roles of clinician and
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evaluator is wrong and will likely have negative impacts on both the evaluation and the
therapy.” (Ackerman, 2006, p226)
The NICHD Investigative Interview Protocol is currently the option best supported by
research (Lamb, Orbach, Hershkowitz, Esplin and Horowitz, 2002; Brown and Lamb, 2009).
The NICHD Investigative Interview Protocol uses a “funnel” approach that begins with
broad, open-ended questions that are then cautiously followed up with more direct questions.
Research has demonstrated that, in comparison with those who improvise, child protection
interviewers who follow this protocol conduct better organised interviews, elicit more
information and are better able to avoid interview practices that risk contamination (Lamb,
Sternberg and Esplin, 1998).
Given the degrees of uncertainty operating, it is also important that professionals providing
expert evidence in this area be up to date in their awareness of relevant research and the
implications of new research findings for their practice, but also they must have the skills to
separate credible research findings from “junk science”. Galazter-Levy, Gould and
Martindale (2009) provided a discussion of how information from the behavioural sciences
can usefully be brought to bear on custody issues by assessing its credibility and relevance to
each particular case. They outlined potential strengths and weaknesses of this type of
information and suggested tools for assessing the quality of scientific information used in
relation to custody matters. Earlier Gould and Martindale (2007) specified an extensive
literature they believed all practitioners conducting assessments of child sexual abuse
allegations in the context of custody disputes should be familiar with.
However, while the US has some very clear guidelines, adherence to these guidelines has
been another matter. Bow, Quinnell, Zaroff and Assemany (2002) surveyed the procedures
used by forensic psychologists investigating allegations of child sexual abuse in the context
of child custody disputes in the US. They found considerable variation in practice including
that one quarter interviewed the alleged victim and alleged perpetrator together. Two thirds
tested the alleged victims in some way, but some relied upon projective tests not supported by
peer-reviewed literature (Lilienfield, Wood and Garb, 2000) and/or found to be ineffective as
diagnostic tools (Kuehnle, 1998). Only one third used a sexual abuse protocol, model or
professional practice guideline in their evaluations of allegedly sexually abused children.
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Bow et al (2002) found that many evaluators were not guided by published research in
choosing their techniques and instruments. They asserted that an evaluator assessing
allegations of child sexual abuse in the context of a custody dispute must have knowledge of
three forensic areas:

practices and procedures related to child custody

sexual abuse evaluation techniques

assessment of alleged sexual offenders.
They further asserted that in a comprehensive model for forensic assessment of child sexual
abuse:

the forensic evaluator should be appointed by the court and have no prior involvement
with the case;

consideration should be given to whether a sole evaluator or team approach would be
better;

all relevant records should be reviewed;

the nature, sequence and circumstances of the allegation/s should be assessed;

multiple data sources consistent with current literature on forensic methods and
procedures should be used

the evaluator should interview the alleged victim using forensic interview protocols
and be cautious about the use of projective tools such as anatomically detailed dolls;

the evaluator should also use several (specified) psychological testing tools.
An influential and well respected US model is Kuehnle’s (1996) multiple hypothesis
approach, which postulates that, for each case, nine possibilities must be considered:
1. The child is a victim of sexual abuse and the allegation is credible and accurate.
2. The child is a victim of sexual abuse but, due to age or cognitive deficits, does not
have the verbal skills to provide a cr4edible description of his or her abuse.
3. The child is a victim of sexual abuse but, due to fear, will not disclose his or her
abuse.
4. The child is a victim of sexual abuse but, due to misguided loyalty, will not disclose
his or her abuse.
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5. The child is not a victim of sexual abuse and is credible but has misperceived an
innocent interaction. [Gould and Martindale, (2009) add to this truthful, but has
misperceived an ambiguous situation or misidentified an alleged suspect].
6. The child is not a victim of sexual abuse but has been unintentionally contaminated by
a concerned or hypervigilant caretaker or authority figure.
7. The child is not a victim of sexual abuse but has been intentionally manipulated by a
caretaker or authority figure into believing that he or she has been abused.
8. The child is not a victim of sexual abuse but knowingly falsely accuses someone of
sexual abuse because of pressure from caretakers or authority figures who believe the
child has been abused.
9. The child is not a victim of sexual abuse but knowingly falsely accuses someone of
sexual abuse for reasons of self-aggrandisement or revenge.
Lamb, Orbach, Sternberg, Esplin and Hershkowitz (2002) defined five types of utterance by
interviewers, three of them useful, two of them potentially contaminating:

Facilitators (eg “OK” or restatement of child’s utterance)

Invitations (eg “And then what happened?”)

Directive utterances (eg “What colour was the couch?”)

Option-posing utterances, which are considered leading (eg “Were his clothes on or
off?” “Did he tell you not to tell?”)

Suggestive utterances, which strongly indicated a desired response (“He told you not
to tell, didn’t he?”).
In New South Wales, agencies including the Police, Department of Community Services and
The Joint Investigative Response Team (JIRT) have attempted to meet demands for greater
accountability by developing methods and protocols such as interview techniques that add
rigour to the legal truth-finding process, in order to ensure that there are sufficient safeguards
in the system for dealing with potential false allegations. However, these guidelines have
limited value if

they are not kept up to date and consistent with a fast moving area of research

they are not adhered to by practitioners acting as expert witnesses

few practitioners have the training needed to fully understand and conscientiously
follow such guidelines.
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19
Training, credentials and implementation of panels.
The consequences of child sexual abuse can be very serious for the child and the
consequences of a false finding of child sexual abuse can be very serious for the alleged
perpetrator. Since often there are no witnesses to the alleged abuse other than the alleged
perpetrator and the alleged victim and no material evidence, it is essential that the
information that can be provided by children is elicited in a manner that ensures its reliability
as evidence in the Family Court or the Federal Magistrates Court when determining cases that
involve allegations of child sexual abuse.
Currently there are very few practitioners in this field, so the waiting time involved in
obtaining an expert report can be many months. Although the cost to the family of obtaining
an expert evidence report is usually several thousand dollars, the professional skills of these
practitioners are diverse and generally not specific to the forensic purpose, so the needs of
children who may be at risk and the needs of parents who may lose access to their children
may not be well served.
There is therefore urgent need for both a suitable training program in forensic psychology and
a clear set of guidelines to ensure that those who provide expert evidence in these cases meet
a high standard.
It is clearly highly desirable that

a set of guidelines to be observed by those providing expert evidence in relation to
alleged child sexual abuse in the Family and Federal Magistrates Court be developed
by a group including representation of all relevant fields of expertise.

a coursework-based Masters in Forensic Psychology degree be developed to be
provided by one or more Australian universities to equip those who provide expert
evidence in relation to alleged child sexual abuse with the specialist skills they need
to satisfactorily undertake this work

that Masters in Forensic Psychology graduates be able to apply for accreditation and
registration in a panel of experts qualified to be appointed to provide evidence in
child sexual abuse proceedings before the Family or Federal Magistrates Court.
The Federal Legislature is able to pass regulations that would allow the Federal Attorney
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General’s Department to approve education providers to administer a coursework masters
and to then administer the accreditation and registration of experts to a panel. This proposal
is similar to the current system administered by the Federal Attorney General’s Department
for the accreditation and registration of Accredited Dispute Resolution Practitioners.
To provide the core competencies needed to provide reliable expert opinion in relation to
allegations of child sexual abuse, a Masters in Forensic Psychology would need to address in
some detail the following areas:
1. Legal foundation and ethics, including the framework, processes and protections for
children within the Family Law Act, disclosures and mandatory reporting obligations
and the duty of the expert witness to the Court
2. Child abuse: causes, correlates, definitions and diagnosis, with specific focus on child
sexual abuse
3. Children’s cognitive development, including development of language skills and
common sources of misunderstanding
4. Forensic interview techniques for use with adults, including both theoretical and
practical components
5. Forensic interview techniques for use with children, including both theoretical and
practical components
6. Administration of age-appropriate tests and memory aids
7. Requirements of expert evidence reports, including their approach, structure, content,
supporting material and role in court processes
8. A written assignment requiring a substantial literature search.
It is anticipated that many of those admitted as candidates to the coursework Masters in
Forensic Psychology, will already have postgraduate qualifications as a clinical psychologist
or psychiatrist, but whether this should be the formal prerequisite may need to be reviewed.
The introduction of a coursework Masters in Forensic Psychology and establishment of an
Expert Panel would give the Family and Federal Magistrates Courts a larger pool of experts
to draw upon, resulting in shorter waiting times, a reduction in costs and a more consistent
standard of expert evidence. In turn this would facilitate safer and fairer outcomes for both
children and accused parents.
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20
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Family Law Proceedings - Expert Panels and Guidelines.
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