Echoes of the Ellis trial: flawed evidence still apparent in court

A form of evidence used in the trial of childcare worker Peter Ellis was discredited by the Supreme Court, yet similarly flawed reasoning is running amok in the Family Court today, according to a new paper.

Faculty of Law Associate Professor Carrie Leonetti.
Faculty of Law Associate Professor Carrie Leonetti.

Unreliable pseudo-scientific evidence used today in Family Court cases is similar to flawed evidence that featured in the wrongful conviction of Peter Ellis, according to University of Auckland legal scholar Carrie Leonetti.

During Ellis’ appeal, the Supreme Court criticised and discredited the use of ‘child sexual abuse accommodation syndrome,’ which was presented by a psychiatrist during the childcare worker’s 1993 trial, and quashed his convictions.

Meanwhile, in the Family Court today, a similar method of characterising a child’s behaviours - ‘parental alienation syndrome,’ is used. Parallels between the use of child sexual abuse accommodation syndrome in sexual abuse prosecutions in the 1990s and the use of parental alienation syndrome in present day Family Court cases are striking, Associate Professor Leonetti says.

"The psychologists who offer this kind of evidence in the Family Court exhibit the same ethically problematic characteristics as the child sexual abuse accommodation syndrome experts criticised by the Supreme Court in the Ellis appeal,” she says.

“Their evidence constitutes advocacy rather than a balanced approach to causation. It fails to acknowledge other possible explanations for a child's rejection of a parent and is directed at supporting a preconceived outcome: shared care as the only appropriate option."

Like the behavioural symptoms of the syndrome in the Ellis case, the symptoms of parental alienation syndrome are vague, subjective, and can be found in all children, Leonetti says.

Resisting or refusing contact with a parent, eavesdropping on parents, fluctuating between friendly and hostile behaviour, and giving 'vague reasons' for rejecting a parent are among the behaviours included.

"The purpose of my article is to bring attention to one type of unreliable pseudo-scientific evidence - evidence that attempts to infer from the similarity of one child's behaviour to a purported profile or pattern that is used to determine the existence of abuse.”

Both the syndrome evidence used in the Ellis case, which contributed to his wrongful conviction, and parental alienation reasoning used in the Family Court today arose out of the same era and have similar origins. Leonetti says both were developed by clinicians and based on theory and anecdotal experience rather than academic research.

"Neither theory was validated scientifically, let alone for reliable forensic use. Both nonetheless ended up infiltrating the justice system."

Although senior courts have worked to eliminate the unreliable application of syndrome reasoning in criminal cases, Leonetti says it’s disappointing that they have permitted “the same flawed reasoning and unfair psychological profiling” to flourish in the Family Court.

Carrie Leonetti (2023): Opposite sides of the same coin: syndrome evidence, child abuse and the wrongful conviction of Peter Hugh McGregor Ellis, Psychiatry, Psychology and Law. 

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