John Ellis was sexually abused for more than a decade from when he was an altar boy at a Bass Hill parish in Sydney in 1974. After studying law and working as a partner at Baker McKenzie, Ellis sued Father Aidan Duggan along with Cardinal George Pell and the Trustees of the Roman Catholic Church for the Archdiocese of Sydney. He lost the case, now known as the Ellis Decision, and eventually received an apology for the "legal abuse" and some financial support from the Catholic Church. Since then, JOHN ELLIS and his solicitor wife, NICOLA ELLIS, have represented more than 850 survivors of abuse, including pending cases. They deal with survivors every day and say many are “all at sea in the legal process”. A decade ago, they set out to structure a legal process that would achieve outcomes that are not only just but also deeply satisfying for survivors of abuse. With the Royal Commission into Institutional Responses to Child Sexual Abuse due to report in December, they explain their challenging work.
Our introduction to this work was through personal experience. John’s own story of abuse over more than 10 years at the hands of a Catholic priest and his attempts to achieve justice through the Catholic Church’s Towards Healing process have been well publicised. The legal ordeal began in 2001 and ended in 2007 with an unsuccessful litigation against the Catholic Archdiocese of Sydney.
A little while after the culmination of John’s case in the High Court, when he had begun the process of re-entering legal practice, we met with a man who had survived abuse at the hands of Father John Denham at St Pius X College in Newcastle. He was one of more than 100 men suspected to have been abused over five years at the school where Denham taught.
After an unsuccessful attempt to have Denham charged in relation to that abuse, and a small settlement from the Church, the survivor succeeded – with the help of the dogged detectives at Charlestown Police – in having Denham charged with multiple offences. Denham ultimately pleaded guilty. This survivor was in contact with a group of 20 to 30 former students of St Pius X who wished to seek redress from the Catholic Church. They approached us through a contact who knew something of John’s story.
The decision to help was easy,
but we knew we could not in good conscience expose any of these men to the re-traumatisation we had been through. Taking on this challenge meant we would have to find a better way of resolving their claims. Our
first focus was on how to avoid all of the most damaging aspects of the litigation process.
Two weeks later, we met with a group of 25 Denham survivors at the Belmont Sailing Club, on the shores of Lake Macquarie. In that room, we outlined our plan and answered the many questions the men had.
The lake was calm that night, but we had no doubt we were entering uncharted waters. The responsibility of what we had agreed to undertake, and the trust being placed in us, was solemn – yet we were buoyed by the great hope these men had that finally they would obtain a response from the Church that meant what had happened to them actually mattered. Critical to this was the solidarity within the group and the support they showed for one another.
The rest, as they say, is history.
That first group turned into more than 60 men, and through this we began to act for other survivors of clergy abuse in the Hunter region. By the time the Royal Commission was announced in November 2012, this had expanded to survivors from other institutions and had become our full- time practice. In late 2013, we started our own firm exclusively to represent such survivors and now have a team of lawyers working with us.
While the core process we developed with that first group of men, called by others “the Ellis Process”, has remained largely unchanged, we are committed to finding better ways to represent survivors and to respond to the challenges that have been generated by the number of survivors who have been given a voice by the Royal Commission.
The need for an alternative dispute resolution process
All of the courageous people we deal with have had an experience of an abuse of trust in an institutional setting, and almost all of them have had experiences of not being believed, being punished for speaking out, and/or being judged for being fragile or mentally unwell. As a consequence, the formal legal system presents almost insurmountable barriers to feelings of safety and wellbeing. The whole environment of the court and the hierarchy of judges, barristers and solicitors can reinforce the survivor’s sense of powerlessness and insignificance.
Our aim has been to develop an alternative to formal litigation and institutional processes that re-traumatise, and replace them with an approach that places the survivor at the centre of the process and empowers them through shared dialogues, quality relationships, and the opportunity for therapeutic outcomes.
This is not something that can be achieved either through formal litigation (where the focus is almost entirely on a monetary outcome) or an institutional process that even in its very best manifestation will always be marred by a shadow of mistrust from the survivor.
While the Ellis Process has taken elements that are available in the formal legal system, it was, as far as we are aware, an entirely novel approach to such claims and is characterised not so much by its external elements as by its core underpinnings.
Mental illness and legal access
At its heart, the problem can be summarised in a few words: the people we are supporting often are highly traumatised and have suffered social marginalisation as a result.
The more traumatised and marginalised survivors are, the less access they have to the usual pathways to “justice” offered by the legal system. One of the most pervasive impacts of abuse in childhood is that it is often perpetrated by a person who has actual and often moral authority and control over the child. Not surprisingly, one of the common significant impacts on the child’s psyche is the development of a pathological mistrust of authority and institutions.
The survivor is then, in adulthood, asked to trust their lawyer, the legal system, the institution in whose care they were abused and a range of other “institutions” in bringing forward a claim for the impacts of the abuse.
It is little wonder that many have chosen, even in the face of the Royal Commission, to keep their silence, and that those who do seek to engage with the legal system often experience great difficulty. Those who do choose to engage with the legal system often do so with an assumption that once again they will be taken advantage of. By the time of its final report, the Royal Commission will have conducted about 8,500 private sessions with survivors. It is possible that many times this number of survivors will never come forward to speak about the abuse they have endured.
Giving the survivor control
Speaking or writing about traumatic memories is inherently stressful and often re-traumatising. Unless safe conditions are created, this disclosure is likely to trigger all of the vulnerabilities created by the abuse, including anxiety about not being believed and of once again having their trust abused. An understanding of “complex trauma” is important to avoid the lawyer taking the lack of trust by the survivor as an indictment on the lawyer’s integrity or competence. It is critical that the focus remain on respecting the survivor’s vulnerabilities.
Maintaining control in the claims process often becomes paramount for the survivor. Giving control and respect often requires the lawyer to spend more time with the survivor than normally would be the case in other legal processes. Unless that time is taken, the outcome for the survivor from the process will never be satisfactory. In fact, the process itself may well cause harm.
Many survivors refer to a sense that their life is “on hold” during the claim process. While timeframes for civil processes are now one to two years, claims through the formal legal system can take up to five years. John’s own case took more than three years to get to the High Court on a preliminary issue. In that time, there was no consideration of the substantive claim. The case only dealt with the legal technicality of whether the entities holding the property of the Catholic Church in Australia are liable to suit by a survivor of clergy abuse.
The Ellis Process
Our challenge in developing the Ellis Process was to design something that to the lawyers was recognisable as a transparent, rigorous legal process similar to standard legal processes that are in everyday use, but that at the same time to the survivor is experienced as the antithesis of everything negative they expect from the legal system and the respondent institution.
The foundation of the Ellis Process is a focus on three underpinning principles: therapeutic jurisprudence, trauma-informed practice, and the Conversational Model of long-term recovery.
Our starting focus was on the impact of legal processes on psychological wellbeing rather than simply the adjustment of legal rights. What we learned is that the process becomes more important than the outcome – that it is the experience of the process that will live with the survivor. By way of contrast, even a better-than-expected financial outcome will be something held on to only in the legacy of its symbolism or the practical benefits it bestows. Likewise, a disappointing financial outcome will be felt at the time, but if the process has been good enough, that impact will not endure.
The Ellis Process involves being mindful of the three phases of trauma recovery: stabilisation, processing the trauma, and integration and rehabilitation. This is based on the Blue Knot Foundation Practice Guidelines for Treatment of Complex Trauma and Trauma Informed Care and Service Delivery (2014). The Blue Knot Foundation runs programs designed to teach these principles and integrate them into legal practice, and we encourage anyone practising in this area to attend this training. Assisting a survivor to engage with a specialist trauma therapist is crucial to the safety of the process, particularly as timeframes are extended as a consequence of the Royal Commission impacts.
The Conversational Model
The Conversational Model of psychotherapy developed by Professor Russell Meares and other clinicians over 30 years specifically addresses the developmental sequelae of a childhood trauma. It has taught us the importance of attentiveness to individual experience, listening fully and responding with resonance, warmth and empathy. This applies even in the critical aspect of selection of a suitably experienced, independent medical expert to prepare a report about the impacts and aftermath of the abuse. The Ellis Process uses a single expert who is jointly briefed by both parties. It is vital that the brief is as comprehensive as possible, includes all of the questions and material each party wishes to submit, and that the expert has specific expertise in assessing the sequelae of childhood sexual abuse and the effect of trauma on the development of an integrated sense of self.
The survivor’s concept of justice
The things that survivors seek are myriad. While these tend to largely fall within broad categories, a hallmark of the Ellis Process is an ongoing conversation with the survivor around what would be meaningful. This begins at an early stage of the process. Often, that conversation begins with a single word: justice.
One of the most important aspects of ensuring that the process is experienced as a just process by the survivor is addressing at the outset what the survivor’s personal concept of justice is – what do they seek from the process? Few of the survivors we have dealt with have thought about this question. Rather, they have approached us to be told what to want.
It has often been assumed that the primary (or even the only) thing survivors seek is monetary redress. While our society and our legal system have installed financial compensation as the means by which accountability is recognised, this is not usually even in the first three things on the survivor’s list of desired outcomes.
Proper monetary redress is important. For many survivors, it is a practical imperative in terms of stability, safety, access to therapeutic support and as a foundation for putting the abuse and its aftermath in a different place in their lives. It is always important for its symbolic impact. For many people, an opportunity to speak face to face with a representative of the institution as an adult, in a safe environment, and to say whatever the survivor needs to say to them isempowering and helpful in being able to put past experiences of the institution “in a different place”. Sometimes, the survivor wishes to revisit the physical location where the abuse occurred. For very few of our clients is this process about restoring a relationship with the institution. When we use the word “restorative”, we refer to a process that potentially restores the survivor’s sense of personal integrity and safety.
If there is a meeting, aspects that may trigger the survivor need particular attention. This can include how the representative is dressed. We generally request that clerical garb or uniforms not be worn, but even a room full of “suits” can feel disempowering to some survivors. The survivor is always encouraged to bring a support person and great attention is paid to ensure the survivor feels safe throughout the process. If necessary, the institution is asked to fund the costs of a therapist to attend with the survivor.
One of the most important aspects of the Ellis Process is asking survivors what they seek from the process. Money is not usually even in the first three things of the list of a survivor’s desired outcomes.
We encourage survivors to reflect on what would be meaningful, non-financial responses by the institution. These have included: letters of apology to or other engagement with affected family members; repayment of school fees to parents; having the perpetrator’s name removed from awards, honour boards, buildings, playing fields; public statements by the institution naming the perpetrator and encouraging other survivors to come forward (to a safe contact); a memorial placed in school grounds; art and other creative works by survivors collected into an exhibition; book launches funded by the institution; and once digging up the slab of the cottage where the abuse occurred.
These symbolic, non-financial outcomes often can be the most memorable and psychologically transformative features of the process for the survivor.
At the end stage of the negotiations, our advice is always that the survivor not finalise their matter and enter into a legally binding settlement unless they are 100 per cent certain that it is in their best interests to do so. We provide guidance and advice, but the ultimate decision must remain with the survivor and must encompass their intellectual and emotional responses to the offer. Seeing the impacts on a survivor who has been railroaded into a settlement by their lawyers against the survivor’s own instincts has strengthened our resolve to never compromise on this position.
Institutions are asked to leave any settlement offers on the table without any time limit. The survivor can put her or his position without fear of reprisal or a negative impact on the outcome.
The final financial outcome ultimately may be below what the survivor has felt was required to do justice. However, our experience has been that if the outcome is legally proper (as measured by community standards), is symbolic of true accountability, is part of a process where the survivor has been able to stand in their truth and in which there has been empathy and validation, and (most importantly) has been chosen freely by the survivor as being in their own interests after a process that has been “complete” for them, then it can form part of a profound turning point in the survivor’s life and represent a therapeutic outcome.
After a settlement, survivors can feel an emotional let-down, particularly if they have endured many years seeking justice. In our experience, it helps the survivor to know that this is possible, so it does not come as a surprise. Ensuring that therapy is in place and that a session to debrief has been pre-arranged can assist to manage the transition. In addition, the survivor may need ongoing assistance to deal with agencies such as Centrelink and Housing and to engage with supports that can help survivors manage the settlement funds effectively.
The last word
How deeply transformative the process can be is best summed up by survivors who have experienced the Ellis Process. Here are some examples:
“I know and feel that I have my soul back … for the first time in 50 years I feel ‘whole’ and actually feel good about myself. I never believed that I would ever feel whole again – but I do.”
“While one never fully recovers from the experience and the damage of these experiences, the hope lies in the process and the ritual of acknowledgement, apology and peace that can only be reached when the truth is set free.”
“[A]ll my involvement with the Church … had been one betrayal after another … Right from my first meeting with the Royal Commission, I realised that things had changed for the better. The Commissioner listened carefully to my story, asked appropriate questions, responded with compassion and care, leaving me feeling that finally somebody was listening to me. I was very impressed. Those feelings of care and compassion continued to develop during all my dealings with you both … Almost as if saying, ‘my legal expertise will generate the results to abolish the betrayal forever’ – and you did so.”
“I am so glad that you convinced me to come to the meeting when I ‘dropped the ball’. As it transpired, it was a life-changing experience and has allowed me to finally gain complete closure after 60 years.”
“Funny thing, but my initial focus had been on the money to ‘make them pay for their lies and betrayal’. However, after that amazing session … the money became almost secondary. [The representative’s] input was totally unexpected. He is a very wise man with amazing communication skills. He did his homework big time and overcame a problem completely out of left field. I am so very thankful to him for changing my life with his simple, caring understanding.”
“A wonderful, satisfying experience.”
“Words can never describe the positive change your work has made to my life. If it wasn’t for you I would still be caught up in the revolving door syndrome of prison and drug use.”