BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – item about former foster parents who had pleaded guilty to smacking a foster child on the hand with a wooden spoon – had originally faced a number of other abuse charges – CYFS removed two children from their care and said they were no longer suitable foster parents – interviews with former foster parents and CYFS representative – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – item discussed controversial issue of public importance because it dealt with the actions of government department charged with the care of vulnerable children – TVNZ not required to detail nature of more serious allegations – not required to give further information about CYFS’ standard processes – item omitted critical information about evidential interviews of children – left viewers without a clear understanding of the reasons behind CYFS’ actions – upheld

Standard 5 (accuracy) – item inaccurately stated that CYFS “agreed to” and “accepted” the Eathornes’ plea bargain – upheld

Standard 6 (fairness) – implied that CYFS had acted inconsistently with respect to plea bargain – omitted information that explained CYFS actions – item unfair to CYFS – item unfairly portrayed children – upheld

Orders
Section 13(1)(a) – broadcast of a statement
Section 16(4) – payment of costs to the Crown $2,000

This headnote does not form part of the decision.

Broadcast

[1] Sunday, broadcast on TV One at 7.30pm on 9 April 2006, included an item about former foster parents, Ann and Don Eathorne, who had pleaded guilty to a charge of assault arising from two incidents in which Mrs Eathorne had smacked a foster child on his hand with a wooden spoon. The item said that Child, Youth and Family Services (CYFS) had removed the boy and a female foster child from the Eathornes’ care, and it questioned whether CYFS’ actions had been reasonable.

[2] The item said that the Eathornes had originally faced a number of charges but “just before the case was due to go to trial, the charges were dropped”. It reported that the couple had acknowledged that the two smacking incidents had occurred (both when the boy had committed acts of vandalism), but that they had vigorously denied the other charges.

[3] The programme included interviews with Mr and Mrs Eathorne, Mrs Eathorne’s adult daughter and the Eathornes’ brother-in-law, as well as David Lane from the Society for the Promotion of Community Standards, and the General Manager of Operations (Lorraine Williams) from CYFS. Ms Williams stated that the Eathornes were “not considered now to be the type of caregivers [CYFS] would want to have children placed with”.

Complaint

[4] CYFS complained to Television New Zealand Ltd, the broadcaster, that the item was “sensationalist, inaccurate, lacked balance, was exploitative of the children involved and was unfair” to CYFS. It stated that CYFS had provided Sunday with sufficient information for the reporter to have a clear and accurate version of events, including the police summary of facts and CYFS Caregiver Handbook.

[5] Initially, CYFS explained some of the background surrounding the Eathornes’ case. It said that:

• The Eathornes had been caregivers since 1999, and in 2002 there had been two allegations of abuse from two children who had previously lived with them. The allegations were investigated and the children were relocated. The Eathornes were reminded that corporal punishment towards children was unacceptable.
• On a number of occasions the Eathornes were offered training opportunities to help them cope with difficult behaviour. They declined those opportunities, and Mrs Eathorne had made it clear that her parenting skills required no further development.
• In 2005, new allegations of emotional and physical abuse were made by foster children against the Eathornes. An investigation resulted in the case being referred to the police, and the three children were evidentially interviewed – an interviewing technique that determines whether a child is being truthful and identifies whether a child can separate fact and fantasy (the standard technique in cases where a child’s statements may result in criminal charges). The children were interviewed separately and without the opportunity to collude, and all three were consistent in their reporting of physical abuse. As a result, the police laid a charge of child cruelty against the Eathornes.
• When the case came to court, the case had been plea-bargained down and, in return for a guilty plea which avoided the need for the children to give evidence in front of a jury, the charge was reduced to one of common assault.

Standard 4 (balance)

[6] CYFS said that Lorraine Williams had agreed to an on-camera interview with Sunday on the basis that the Eathornes would provide a signed privacy waiver. Despite extensively discussing the serious findings of CYFS’ investigation into the allegations, TVNZ had only aired an “extremely small portion” of Ms Williams’ interview, it said. CYFS contended that only those aspects of the interview which did not directly and factually refute the “emotive and misleading story angle” were shown.

[7] CYFS argued that the reporter had been supplied with the police summary of facts, which detailed the serious and extensive nature of the abuse disclosed by the children. Sunday had been made aware that this information was public record, and could therefore be broadcast. By choosing not to broadcast the information, CYFS said, TVNZ had knowingly concealed vital and relevant information from the public. It added:

The item implied that the only issue pertaining to the Eathornes’ caregiver status being revoked was the smack with a wooden spoon, however it was made very clear to the reporter that the abuse was serious, sustained and cruel…

[8] CYFS was concerned that the Eathornes were portrayed as “tearful victims” and “spectacular parents”, which it said was sharply at odds with the information provided to the reporter. Sunday had been advised that there had been ongoing concern about some aspects of the couple’s parenting skills, and two prior investigations into allegations of physical abuse.

[9] Commenting on Sunday’s choice of interviewees, CYFS maintained that the Eathornes’ daughter was not a neutral commentator on her mother or step-father’s use of physical discipline. It noted that the only other character witness for the couple had been their brother-in-law, despite the reporter’s statements about “the community” support. CYFS stated that TVNZ’s failure to seek any neutral comment was, at best, “a disingenuous approach”.

[10] CYFS noted that Sunday had interviewed David Lane, and it argued that Mr Lane was “a self declared advocate for parents and foster parents’ right to smack”. It noted that the Office of the Children’s Commissioner, a credible source for the opposing view, had not been approached for comment.

[11] CYFS contended that the item had portrayed the Department as “aggressive, reactionary and arrogant”. Despite having been provided with a copy of its Caregiver Handbook, it said, Sunday had implied an unreasonable and unnecessary reaction to the children’s allegations by CYFS. The handbook made it clear that, when such allegations of abuse were made, the first priority was to remove the children from harm. The statement in the item that CYFS had “swooped” into the community and taken the children was unbalanced, it said.

[12] Referring to the statement by the Eathornes’ daughter that the foster child’s story was “not good enough for CYFS to come in and just immediately assume that everything’s true, and just whip the kids out of their home”, CYFS stated that the process of immediate removal of children at risk was “sound work practice”. There had been no immediate assumption of guilt, merely an accepted practice of establishing the safety of the child first and the truth of the allegations immediately after.

[13] The complainant noted the following statements in the item relating to the Eathornes’ brother-in-law:

Reporter:          But if CYFS had asked around this community in the first place, Owen Byfield
                        believes police and lawyers may never have become involved.

Owen Byfield:   Why didn’t they just go and talk to them? Why get the police involved at that
                        stage? Why not go and talk to Ann and Don, just as people? This whole thing
                        has got out of hand.

[14] The complainant advised that the seriousness of the allegations had meant that the involvement of the police was mandatory, and it had been justified given the result of the evidential interviewing process. It was accepted standard practice, and CYFS stated that the Caregiver’s Handbook clearly detailed the role of the police in allegations of physical abuse.

Standard 5 (accuracy)

[15] CYFS identified a number of statements in the item which it contended were inaccurate.

 “…and Don and Ann Eathornes’ track record as foster parents was impressive, until one little boy came to stay with them”

[16] CYFS stated that, in actuality, there had been several ongoing concerns about the Eathornes’ parenting skills, but the couple had been resistant to all offers of further training. Further, the couple had been the subject of two previous allegations of physical abuse that had not been substantiated. CYFS noted that this information had been provided to Sunday, and it contended that describing the couple’s track record as “impressive” was a misrepresentation of the facts.

“But those smacks have led to the Eathornes facing criminal charges”

[17] The complainant argued that a range of allegations of sustained physical abuse had resulted in the Eathornes facing charges. The police summary of facts, which had been provided to TVNZ, outlined these allegations. CYFS said that the programme had been misleading in presenting the smacks with the wooden spoon as the focus of the police case.

“[the foster child] smashed $5,000 worth of windows in a tractor that belonged to the Eathornes’ employer”

[18] CYFS said that a thorough search of records failed to find any mention of this alleged incident or any claim for reimbursement, and the Eathornes’ social worker was adamant it had not been discussed with her. CYFS asserted that TVNZ had “taken reports of this incident on face value, without verification of the facts”. It considered that the enactment of the vandalism was gratuitous, and a misleading portrayal of the child as being without merit.

[19] The complainant maintained that the presentation of this alleged behaviour as fact was inconsistent with Sunday’s refusal to air the instances of abuse substantiated by the children’s evidential interviews.

Reporter’s question “Can you honestly tell me that is all the corporal punishment, the physical punishment, you handed out?” and Ann Eathorne’s response “That is all I’ve ever done”

[20] Given that TVNZ had been well aware of the police summary of facts, CYFS said that it was irresponsible of the journalist not to pursue this matter further. The “tacit acceptance” of Mrs Eathorne’s statement had “allowed a mistruth to stand unchallenged”, it wrote.

“Ann’s now paying dearly for the day clear thinking went out the window”

“What [Ann Eathorne] did is against CYFS rules, and all the current thinking. But at the time she says she told CYFS, and the family went on with their lives, little knowing that four years later those four whacks on the hand would become part of a police investigation, a criminal conviction, and the enforced break up of a family”

[21] The complainant reiterated that a range of allegations had resulted in the Eathornes facing charges. The reporter’s statements had misled viewers by implying that the charges laid by the police were only the result of a “brief and negligent loss of temper”, it said.

[22] Referring to the statement that it was “the enforced break up of a family”, CYFS noted that the foster children were not the Eathornes. CYFS had been entrusted with their care, and their caregivers had agreed not to use physical discipline. The complainant said that the Department could not approve the continued use of caregivers who resisted all opportunities to improve their methods of discipline.

“Here’s where the story becomes extraordinary. Now the original complaint came from a third foster child, a boy who stayed with the Eathornes for only four days”

[23] CYFS contended that this statement misled viewers by omitting the fact that the child had run away from the Eathornes due to the physical abuse that was being meted out to the children. It said:

Rather than being uninformed by short exposure to this household – as is implied – the child was in fact exposed to a harmful, unsafe environment.

“But there’s the thing. Just before the case was due to go to trial, the charges were dropped.”

“…the prosecutor and CYFS agreed to drop those serious allegations”

[24] The complainant said that the allegations had not been dropped; they remained substantiated by evidential interviewing. Sunday had not explained that the Eathornes pleaded guilty to lesser charges to avoid facing the more serious charges of child cruelty, it said. CYFS submitted that there was a clear implication from the statements that there was insufficient evidence for the police to continue the prosecution, an implication refuted by the police summary of facts.

[25] While it accepted that the plea bargain had been mentioned in the final part of the item, CYFS contended that the time delay between the two quotes allowed the misleading inference to remain unchallenged “until a point at which the majority of viewers had accepted [it] unquestioningly”.

[26] CYFS said that the plea bargain had ensured the children did not have to testify in open court, and this had been the sole justification for the acceptance of the plea bargain. Further, CYFS was not one of the parties who arranged or approved plea bargains, and therefore it was misleading to imply that CYFS’ approval was part of the process.

Owen Byfield’s statement “I was in court and I wanted to hear what sort of evidence the police had, because I’m quite convinced they didn’t have any”

[27] Assuming that Mr Byfield had been in court, CYFS contended that he would have heard the police summary of facts which was read out. This made Mr Byfield’s comments less than credible, it said, and also implied that TVNZ aired a misleading comment without challenge.

“…tonight on this programme Lorraine Williams, General Manager of Operations, gave Don and Ann Eathorne the sack as foster parents”

[28] CYFS stated that the Eathornes were officially made aware of the revoking of their caregiver status several months before the programme, and Sunday had been told this. The statement was both sensationalist and untrue, it asserted.

“But…the people in their community that we spoke to, said they never saw any evidence of those allegations either”

“People here who knew the children, believed the stories of golf club beatings were just that, stories, made up by Ann and Don’s foster son to impress the other foster child”

[29] CYFS questioned who TVNZ had spoken to in the community, and why they were not prepared to speak on the record. It noted that the item had only shown close family members and, as a result, the only comment broadcast was from sources that were not impartial or 100% reliable.

Reporter’s statement that “In the end, all that was legally established were four smacks on the hand with a wooden spoon”

[30] While it accepted that this statement was factually correct, CYFS argued that it was misleading because it implied that the other instances of abuse were in question. This was refuted by the summary of facts, it said. CYFS observed that if the parties had not agreed on a plea bargain, all of the original charges would have had to stand the test of open court.

David Lane’s statement that “It’s an outrage, what’s happened here. You’ve got two well-meaning parents, experienced parents, who’ve gone way beyond, way beyond the call of duty in terms of serving the interests of this young boy, and that was acknowledged in the court”

[31] CYFS submitted that this statement was incorrect because the Eathornes’ “good works” were not acknowledged by the courts.

Reporter’s statement “But the Eathornes’ lawyer told Sunday that under CYFS own rules foster parents like them can’t justify using any force on a child, so Ann and Don pleaded guilty to assault with a wooden spoon”

Ann Eathorne’s statement “It was just so scary, that when they brought that plea bargain to us, it sounded good. Like we could go home, and that’s what we wanted to do”

[32] CYFS wrote:

The Eathornes accepted a plea bargain to avoid more serious charges and their associated penalties. To portray their motivation for accepting a plea bargain as being due to a lack of sophistication is misleading.

Don Eathorne’s statement “I don’t think that we will ever be allowed to contact them either. So it’s pretty sad, because they were our children at the end of the day – after four years, they were part of us”

[33] CYFS noted that Ms Williams had made it clear to TVNZ that the Department would consider supervised access if it was deemed in the best interests of the children. Further, the Eathornes were foster parents so the children were not theirs, and to broadcast the statement “unchallenged and unqualified” was emotive and misleading.

Standard 6 (fairness)

[34] CYFS stated that the item had used sensationalist language that implied the Eathornes were victims of unfair and callous treatment by the Department. Further, it had selectively and drastically edited the interview with Ms Williams to imply that CYFS had made a judgment about the Eathornes without sufficient justification

[35] CYFS observed that the item had begun with an emotional exchange between the reporter and the Eathornes, in which the couple had expressed their love for the foster children and stated that they wanted the children back. While it understood that it was “normal practice to begin a story on an emotive note”, the complainant submitted that the reporter’s questioning had distorted viewers’ understanding of the nature of the foster care relationship.

[36] CYFS stated that the Eathornes were not parents, but were caregivers charged with the safety and wellbeing of vulnerable children. It was CYFS’ responsibility to ensure that safety, and it was the Eathornes’ own behaviour that had resulted in the children’s removal. Having provided Sunday with the police summary of facts, CYFS contended that TVNZ knew the extent and degree of the abuse suffered by the children, and yet “still chose to portray those at the centre of the concerns as tearful victims”.

Portrayal of children

[37] The complainant maintained that TVNZ had exploited the children involved in the case to “pursue its own agenda”. The children concerned were portrayed as liars and undeserving of trust, it said.

[38] CYFS submitted that the reputation of the child who was alleged to have committed acts of vandalism had been maligned. The reconstructions in the item had portrayed the child as “extremely destructive and disturbed”, to the extent of using the Sex Pistols song “Pretty Vacant” as a backing track and directing the young actor to sneer and twist his expression. The events portrayed had not been proven and constituted hearsay, it noted.

[39] CYFS said that TVNZ’s unfair approach was illustrated by the following extracts from the item:

Owen Byfield:            I don’t think so, because the allegations were made by a kid that was
                                known to stretch the truth. He was a runner. He was there for a short
                                time and ran away, and somehow or other that made Ann and Don big
                                ogres. The kid shouldn’t have been believed just like that.

Maeradyth Cherry:    There’s no way that I’d believe that my stepfather had hit anybody with a
                                golf club, let alone a child in his care. They were taken because of
                                essentially a rumour that was started by another little boy, and that’s
                                not good enough. That’s not good enough for CYFS to come in and just
                                immediately assume that everything’s true, and just whip the kinds out of
                                their home.

Reporter:                  People here who knew the children, believed the stories of golf club
                                beatings were just that, stories, made up by Ann and Don’s foster son
                                to impress the other foster child.

[40] These quotes portrayed the children as liars and implied on principle that children should not be believed, CYFS wrote. This was despite TVNZ being aware of the evidential interviews undertaken with the children, which were designed to separate fact from fantasy. CYFS had concluded that the children were in an extremely unsafe environment and that ongoing physical abuse had occurred. Because this had not been communicated during the item, the complainant said, the children were maligned without the opportunity for recourse.

[41] CYFS attached portions of its Caregiver Handbook and the police summary of facts to its complaint.

Standards

[42] TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[43] TVNZ pointed out that the police summary of facts referred to by CYFS had never been presented to the court. Accordingly, that information was not part of the “public record” as the complainant contended. The broadcaster said that it had legal advice that to use that material – untested in court – would open the programme to the risk of defamation proceedings.

[44] TVNZ advised that when the Eathornes’ case went to court and the prosecution withdrew other charges against them, the longer summary of facts was replaced by an earlier summary of facts. That document only covered the single charge of assault to which the couple entered a guilty plea.

[45] The broadcaster said that it could not accept CYFS’ statement that the more serious allegations were not “dropped”. The item had made it clear that the couple had been accused of more serious charges, it said, and had implied that there may have been insufficient evidence for the more serious charges to stand up in court. However, the court hearing was confined to two incidents in which a boy had been smacked with a wooden spoon.

[46] TVNZ noted comments from the judge in the Eathornes’ case which confirmed that the boy who had been smacked was guilty of “more than mere naughtiness, there was considerable damage to property”, and that the Eathornes had to pay for the damage. TVNZ referred to CYFS’ statement that it had “failed to find any evidence to support Mrs Eathorne’s claim that she had sought reimbursement” for the tractor vandalism. It said that Mrs Eathorne had made no such claim in the item.

[47] The broadcaster stated that Sunday had not challenged the fact that evidential interviews with the children were carried out, or that the police originally planned to charge the Eathornes with child cruelty. However, it said:

…under our legal system, evidential interviews and police charges have to be proven in court before they can be viewed as the truth. We all know that such evidence can be disproved, and often is. That the police planned to lay charges of cruelty does not prove guilt. In this case, the core of the whole story was the simple reality that those very serious charges were never followed through in a court of law at the agreement of all parties (including Child, Youth and Family Services). The charges were dropped.

[48] Referring to Ms Williams’ interview, TVNZ said it was widely known that television interviews were frequently much longer than the portions that were finally used on air. It contended that Ms Williams had been alerted to the fact that edited passages of her interview would be used in the programme. Ms Williams had confirmed that the two most important points to make in the programme were that CYFS believed the children’s word, and that CYFS believed that the Eathornes’ file showed evidence of cumulative abuse, leading to the conclusion that they were not suitable foster parents.

[49] TVNZ noted CYFS’ reference to the acts of “alleged” vandalism. It said that the word “alleged” should not apply, because the programme had confirmed that both incidents had occurred. Sunday had portrayed the reconstructions in as straightforward a manner as possible, it said, and the actor had not “sneered”. The nature of the incidents had been carefully checked with witnesses, and friends and family had confirmed that they had occurred.

[50] The broadcaster maintained that views reflected in the programme which may have appeared to question CYFS’ handling of the case had amounted to fair comment. While CYFS was entitled to believe that it had investigated the case thoroughly, TVNZ asserted that it was the job of the media to probe and challenge the actions of government departments.  Those interviewed in the programme had expressed their view that the matter had not been investigated thoroughly in the very early stages, it said, and they claimed that there had been no investigation before the children were removed. TVNZ maintained that this had been reported fairly and unambiguously.

[51] Turning to CYFS’ argument that the allegations were “well-substantiated”, TVNZ said:

…it may be all very well for a social worker to decide in-house on the suitability of the Eathornes to be foster parents. However, the charges were never tested in court. They are not proven. More than that, the crown prosecutor, the police, and CYFS all agreed to dropping the charges to the lesser one of assault – and after the guilty plea the judge expressed the view that the penalty should be the least it possibly could be.

[52] Noting the following comment by the reporter, TVNZ believed that Sunday had acted responsibly by indicating that other allegations had been made against the Eathornes:

…at this point Lorraine Willliams listed the serious allegations from the children against the Eathornes, allegations the Eathornes deny, allegations which were never prosecuted in court and which we cannot broadcast, but allegations CYFS still believes did happen.

[53] TVNZ noted that the only evidence for the other charges was from the children concerned. While CYFS officers may have believed that this was sufficient to prove abuse, TVNZ stated that there was plenty of evidence from other cases that children were not always reliable witnesses. The programme had not called the children liars or untrustworthy, it said, but it had been justified in challenging the veracity of the evidential interviews. TVNZ observed that the Eathornes’ lawyer had said that one of the children had changed a story on at least one occasion, and the school had reported that another had recanted.

[54] With respect to CYFS playing a part in dropping the charges, TVNZ contended that Ms Williams had confirmed that CYFS had been a party to the decision. In front of witnesses, she had said that she would have handled it differently and prosecuted, but she understood a reluctance among her staff to have the children testify. The reference had not been misleading, it said, adding:

It was an important part of the story that while your department demonstrated a very clear readiness to drop what were very serious charges, it persisted in claiming the Eathornes were guilty of abuse – over and above the assault charge involving the wooden spoon.

[55] Referring to CYFS’ challenge to the statement that the Eathornes’ track record as foster parents was “impressive”, TVNZ said that this challenge was not compatible with affidavits and references from CYFS which attested to and praised their parenting skills. TVNZ observed that CYFS had placed twenty children with the Eathornes, and said that Sunday had papers indicating the Department’s satisfaction with their skills. The programme had quoted a CYFS liaison officer in 2003 as saying “the Eathornes are an excellent couple. Ann loves mothering”.

[56] Turning to consider the item’s introduction where the Eathornes expressed their love for the children, the broadcaster maintained that this was not “cynical”. Rather, it was a long-established way of starting a television report about an emotional and traumatic time in people’s lives. TVNZ stated that it was crucial, and central to the story, to know that the Eathornes still loved and missed the children.

[57] Further, TVNZ disputed that the programme had “distorted” viewers’ understanding of the foster care relationship. It said:

…while your officers might wish foster parents to maintain a professional demeanour as caregivers, not parents, Don and Ann Eathorne had had the two foster children in their family for four years. Clearly they had grown to love them…it may not be in the manual but it is an understandable emotion.

[58] The broadcaster asserted that Maeradyth Cherry had not been presented as a “neutral commentator”, but had been identified as Ann Eathorne’s daughter. As such, she was someone who had lived with the couple and experienced family discipline. Nor had Owen Byfield been presented as neutral, TVNZ wrote, as he had been presented as the Eathornes’ brother-in-law and as a foster parent himself. Mr Byfield had attended the court hearing, but had not heard the evidence referred to by CYFS because that summary of facts had not been presented, it said.

[59] TVNZ maintained that the programme had sought wider comment from neighbours, other foster parents, friends and the children’s school. While some people had been reluctant to appear on camera, it said, none of them had substantiated CYFS’ claim that the Eathornes abused children. The broadcaster wrote that it was “a hard and fast rule of journalism that sources who give information but wish to remain anonymous must be protected”.

[60] With respect to the statement that Mrs Eathorne was “paying dearly for the day clear thinking went out the window”, TVNZ said that the item had not implied that the charges laid by police were the result of a few insignificant smacks. Sunday had said on several occasions that there had been other serious allegations, but they had been dropped before being tested in court – the core of the story.

[61] The broadcaster did not consider the word “swooped” was inappropriate to describe the manner in which CYFS removed the children from the Eathornes’ care. The word had encapsulated the unexpected arrival of the CYFS officers, and the speedy process which followed, it said.

[62] TVNZ contended that the item had reported the fact that the foster boy (who had been with the Eathornes for four days) had run away because of stories of abuse. The item had said that the foster son had told school teachers that he had lied to the runaway boy to impress him. This had been verified by a person in an official capacity who had regular contact with the two long-term foster children, TVNZ said, but that person had wanted the information to be unattributed.

[63] Referring to the plea bargain, TVNZ said that the Eathornes’ lawyer believed that they had accepted the lesser charge because Ann Eathorne had already admitted it during the police interview. It noted that the Eathornes’ lawyer had told TVNZ that it was the prosecution who approached him first about a plea bargain, and the Eathornes had initially wanted to fight the charges. TVNZ noted that CYFS had:

…characterised the Eathornes’ decision to accept a reduced charge as an admission of guilt. With respect, the [complaints] committee believed that under the law of the land you are not entitled to reach such a conclusion.

[64] In addition, TVNZ noted CYFS’ assertion that the item had suggested the Eathornes accepted the plea bargain “due to a lack of sophistication”. The broadcaster stated that the couple’s lack of sophistication in legal matters was a summary of what the Sunday team had found through talking to the Eathornes, their lawyer, their family and friends. They had been extremely upset by the whole experience and simply wanted it to end, it said, and this was an unsophisticated approach to legal matters.

[65] TVNZ believed that reporting the fact that CYFS was standing by the evidential interviews was evidence of balance being applied. However, it noted that evidential interviewing was not foolproof. Further, TVNZ asserted that it was Owen Byfield’s opinion that the foster boy was “a kid that was known to stretch the truth”.

[66] The broadcaster noted CYFS’ argument that the Department had advised the Eathornes months before the broadcast that they would no longer be considered as foster parents. It wrote:

The Eathornes emphatically deny they were notified that their care-giving status as foster parents was revoked before this broadcast. They have provided affidavits to that effect. Sunday was not informed by your department ahead of this interview that the Eathornes would not again be allowed to foster children under Child, Youth and Family Services.

[67] TVNZ referred to CYFS’ concern about the reporter’s reference to Owen Byfield suggesting that if CYFS had asked around the community, police and lawyers may never have become involved. It asserted that this quote reflected Mr Byfield’s opinion, and did not amount to Sunday suggesting or endorsing a view that police and lawyers should not have been involved. Rather, it had simply acknowledged that there existed a viewpoint that preliminary enquiries around the community might have produced a more satisfactory outcome. Further, TVNZ noted that Mr Byfield’s opinion had been challenged by the reporter’s question “But faced with allegations like those doesn’t CYFS have a duty to remove those children from Don and Ann’s care?”

[68] With respect to David Lane’s statement that the Eathornes’ good parenting had been “acknowledged in court”, TVNZ disagreed with CYFS contention that this had not occurred. The lawyer for the Eathornes had specifically raised their “good works” in his address, and in the judge’s sentencing notes he told the couple:

…the two of you have apparently gone above and beyond the call of the strict obligations in the arrangement with Child, Youth and Family Services, and you have gone to considerable time, trouble and expense to help this young man.

[69] Further, it advised that Mr Lane had been approached for comment because he had commissioned a legal study of the Eathornes’ case. The programme had not aired Mr Lane’s view that smacking was acceptable, but it had mentioned his work on section 59 of the Crimes Act to put his views into context. TVNZ saw no reason why the item should have included an interview with the Children’s Commissioner to balance Mr Lane’s comments.

[70] Considering the item’s reference to whether or not the Eathornes would see the children again, TVNZ pointed out that Ms Williams had made her comments about supervised access off camera. When Mr Eathorne had said that he thought they would not be allowed contact with the children, TVNZ contended that he was expressing a personal opinion.

[71] The broadcaster asserted that the “emotional sound bites” at the beginning and end of the story did not reflect a lack of journalistic integrity, as CYFS had suggested. The item had simply reflected the Eathornes’ emotions.

[72] Turning to consider Standard 4 (balance), TVNZ felt that the item was balanced and reflected an “appropriate variety of viewpoints”. The Eathornes’ view had been balanced by Ms Williams’ comments, and by the references to the more serious charges which the prosecution did not proceed with. TVNZ contended that the item discussed a controversial matter, and the issues it raised were highlighted in the various lines in the reporter’s script.

[73] Looking at Standard 5 (accuracy), the broadcaster did not believe that the programme contained any untruthfulness or inaccuracies on points of fact. It acknowledged the complainant’s belief that the programme had erred in not accepting as fact the material in the longer police summary of facts which had been withdrawn. However, TVNZ said that it understood that, under the law, such material had no status as fact unless it had been presented in court and a conviction had been achieved. The item had reported the fact that the charges had existed, that they had been unproven in court, and that the more serious charges had been dropped.

[74] With respect to Standard 6 (fairness), TVNZ did not accept that any person or organisation had been treated unjustly or unfairly. The item had been a “true reflection and not a distortion” (guideline 6a) of the situation facing the Eathornes, it contended.

[75] Further, the broadcaster asserted that there was no evidence of any child being exploited, humiliated, or unnecessarily identified. The two foster children at the centre of the story had been shown as the subject of much love and caring from the Eathornes, and they had not been identified.

Referral to the Authority

[76] Dissatisfied with TVNZ’s decision, CYFS referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. CYFS accepted that it was mistaken in stating that the original police summary of facts (containing the more serious allegations) was a matter of public record. As a result of points made by TVNZ, CYFS reiterated the points made in its earlier complaint but it did not refer the following aspects of its complaint to the Authority:

• the “emotional sound bites” at the beginning and end of the programme
• complaint that Owen Byfield would have heard the longer police summary of facts had he attended court
• complaint that the Eathornes had not been “given the sack” as foster parents on the programme
• complaint about David Lane’s statement that the Eathornes’ “good works” were acknowledged in court.

[77] The complainant asserted that TVNZ’s response had hinged on two issues – what legally constituted proof, and the broadcaster’s concerns regarding the risk of defamation proceedings.

[78] Looking at the first issue, CYFS said that Sunday had clearly portrayed it as having taken action without sufficient substantiating evidence. It said:

What constitutes evidence is in dispute, however, as in TVNZ’s view, information provided by the department that was pivotal to the decision to remove all children from the Eathornes’ care and later, to revoke their caregiver status, was not presented or investigated on the basis that it had not been proven in court.

[79] CYFS submitted that the most clear breach of Standard 4 (balance) and Standard 5 (accuracy) was the failure to mention the statutory framework within which CYFS had to make decisions for the children. It said that where the children lived and whether they were safe in that residence were matters determined independently of the criminal proceedings, and yet the item had focused solely on the criminal charges against the Eathornes. The complainant said that the Children, Young Persons and Their Families Act did not allow a criminal court to decide where the children should live or what actions should be taken in the children’s best interests; this was the role of the Family Court. CYFS said that the Department had nothing to do with the criminal charges, and it had not “accepted” the plea bargain.

[80] The complainant observed that criminal proceedings required that charges must be proven “beyond a reasonable doubt”, and a finding that someone was not guilty was not the same as finding someone innocent. It said:

If the media are to only report allegations that are proved “beyond a reasonable doubt” then they will have considerable difficulty reporting accurately any Family Law processes.

[81] CYFS contended that Sunday had broadcast a story dealing with Family Court matters, where nothing was ever proven beyond a reasonable doubt. By failing to mention the more serious allegations as being the reason CYFS removed the children, the complainant alleged that the programme was inaccurate and could “never be balanced”.

[82] Turning to the second issue of defamation, CYFS said that Sunday had chosen to do a “safe” story which was inaccurate and unbalanced, because it did not want to expose itself to liability.

[83] CYFS contended that if the story had been designed to look at the conduct of the police in choosing to bring and then drop proceedings against the Eathornes, it may have stood the test of the standards. However, it said, that was not what the story was about. CYFS wrote:

This story looked at the conduct of the Department in removing the children. It questioned whether the Department acted in the best interests of these children. Yet in doing that, it excluded from the public, that it was trying to inform, the vast majority of the actual situation for these children.

[84] In the complainant’s view, the broadcast implied that the Department should be criticised or at least questioned about its conduct.  However, the programme had failed to present information with which viewers could actually assess whether this questioning was reasonable or not. CYFS maintained that TVNZ’s justification for “putting only half the story together” was that the Eathornes – who were responsible for asking Sunday to look at their case – could sue for defamation. It noted that Sunday could have presented a fair and balanced programme if it had collected a greater privacy waiver.

[85] CYFS maintained the use of a single extract from the Eathornes’ file to sustain the view of the couple as “excellent” caregivers with an “impressive” track record was misleading.

[86] The complainant contended that TVNZ – while refusing to detail unproven claims about the Eathornes – appeared to have a very different standard for what it was prepared to assert as fact in relation to the children at the centre of the story. Unverified facts and opinions had been presented as true based on the broadcaster’s “understanding”, it said.

Broadcaster’s Response to the Authority

[87] TVNZ pointed out CYFS’ concession that the original police summary of facts was not a matter of public record. Because the contents of that summary were “hotly” contested by the Eathornes, TVNZ maintained that it would obviously have been at risk of defamation proceedings if it had broadcast those details. Sunday had not, as CYFS suggested, broadcast a “knowingly misleading presentation of the facts”. The original police summary had contained allegations, not facts, it said.

[88] Referring to CYFS’ original summary of the facts (see paragraph [5]), TVNZ stated that the complainant had failed to include proven facts that had to be taken into account, in particular:

• The Eathornes had vehemently denied the allegations of physical abuse with regard to the two other children.
• It was the police who had approached the Eathornes about a plea bargain. They were adamant that they would defend the other charges, but admitted hitting one child after two incidents of wilful damage.
• The sentencing judge accepted that there had been “considerable damage caused to property” by the boy, which the Eathornes had to pay for.
• The judge considered that a fine of $500 each and court costs of $130 was appropriate.

[89] TVNZ said that CYFS summary also did not refer to the fact that Mrs Eathorne admitted to Sunday that what she did was wrong, and that the reporter said “What she did is against CYFS’ rules, and all the current thinking. But at the same time she says she told CYFS, and the family went on with their lives”.

[90] Further, it said that CYFS did not acknowledge the reporter’s reference to what had triggered the removal of the children, and to the charge of child cruelty carrying a five year jail sentence:

Here is where the story becomes extraordinary. Now the original story came from a third foster child – with the Eathornes for only four days. He alleged that Don and Ann had beaten their permanent foster son with a golf club. That triggered CYFS’ removal of the children and the police charging the Eathornes with cruelty, a crime that comes with a five year jail sentence.

[91] The broadcaster submitted that the reporter’s question to Owen Byfield – “But faced with allegations like those, doesn’t CYFS have a duty to remove those children…?” – was an important one, because it summarised CYFS’ position. Ms Williams had made it clear that the Department did not regard the Eathornes as suitable foster parents, and gave the following reasons for this:

The children will not be returned to the Eathornes, or any other children.

…we will not have children in placements where they are feeling unsafe, where they feel they might be hit, where they feel they are not able to sit at a meal…

[92] TVNZ believed that CYFS’ position had been clearly conveyed by those statements and the following comments in the item:

Reporter:        At this point Lorraine Williams listed the serious allegations from the children
                      against the Eathornes, allegations the Eathornes deny, allegations that were
                      never prosecuted in court and which we cannot broadcast, but allegations
                      which CYFS still believes did happen.

Ms Williams:   We have evidence from the children that we believe there were, much more
                      substantial abuse occurred, and we are acting on that. And I make no apology
                      for acting on that.

                     I have read these children’s files. I have read these children’s files absolutely
                     thoroughly. I am convinced my social workers did an extremely good job and
                     robust social work was undertaken with these children.

                     It appears that where there was really challenging behaviour, maybe the
                     Eathornes, the children weren’t as easy to manage. And that is something that
                     our social workers are very good at identifying. You know normal discipline
                     behaviour, and when it moves to abuse, and in this case the Eathornes have
                     pleaded guilty.

[93] TVNZ contended that CYFS had overlooked all of this information in the item, and seemed to be complaining that CYFS’ version of events was in some way challenged. The broadcaster asserted that it was the fundamental role of the media to challenge and question government departments, and the role they played in the lives of everyday citizens.

[94] The broadcaster maintained that the item properly balanced the interests of the Eathornes (who formally contested the past allegations) with enough background information to let viewers know that there were other issues that CYFS believed were relevant to its decision to remove the children.

[95] With respect to CYFS’ involvement with the plea bargain, TVNZ said that:

…it may be that the Department is not one of the parties which arrange or approve plea bargains. However, CYFS was really the complainant in this case. The police represented its interests. The Department thereby implicitly accepted and acquiesced in the plea bargaining.

[96] The broadcaster noted the two issues identified in CYFS’ referral to the Authority (see paragraph [77]). In terms of “what legally constitutes proof in terms of what is reported as fact”, TVNZ was of the view that CYFS comments were not helpful in determining whether the standards had been breached. Regardless of whether the criminal standard of proof, or the civil standard of proof was applied to the allegations, the dispute was really one of credibility. Further, TVNZ noted that the item had been correct in saying that all that was legally established were four smacks on the hand with a wooden spoon.

[97] The broadcaster asserted that CYFS could not separate itself from the police prosecution because it would not have taken place if the Department had not laid a complaint.

[98] With respect to defamation, TVNZ reiterated its view that it would have been irresponsible, and possibly even defamatory, for Sunday or CYFS to detail the hotly disputed allegations. It was wrong of CYFS to conclude that these other allegations were “the actual situation” for the children, when they were not proven facts.

[99] TVNZ summarised its position as follows:

The issue was whether Mr and Mrs Eathorne had been treated fairly by CYFS in the case of the removal of the child from their care. There was sufficient information given to viewers to form a judgment about whether CYFS had acted fairly in all the circumstances of the case. After all, the item made it clear that the couple had pleaded guilty to assault on the child, and Mrs Eathorne acknowledged on air that she should not have hit the child with the wooden spoon. The other concerns of CYFS were raised, even the original charge of cruelty to children was alluded to.

[100] The broadcaster maintained that no breach of programme standards had occurred. It contended that CYFS’ mistake about the original police summary of facts being a matter of public record was a “fundamental mistake” that undermined the whole complaint.

Complainant’s Final Comment

[101] CYFS submitted that, even though it was mistaken about whether the original police summary of facts was a matter of public record, this did not impact on the substance of its complaint. It said:

Sunday had the summary of facts and should have asked the Eathornes to agree to CYFS being able to provide TVNZ with the information it held about the Eathornes and what the children in their care said to CYFS and to the police. Sunday screened what the Eathornes and others had to say about what the children were alleged to have done and what the Eathornes said they had done to the children. The apparent failure to ask the Eathornes to consent to CYFS providing the other side of the story and additional information to the programme was unfair on the part of TVNZ and meant the story significantly lacked balance and was inaccurate.

[102] CYFS contended that, even without the Eathornes’ privacy waiver, the public interest in making the information available would have allowed TVNZ to use the information as it had been supplied to them in good faith under the Official Information Act. It maintained that there was no impediment to Sunday using the information in its possession, and its failure to do so could only have been the result of a considered and deliberate decision.

[103] The complainant said that it could have provided additional facts about the Eathornes if TVNZ had asked for them. Further, the Eathornes could have expressed their view about whether the material provided by CYFS was defamatory. CYFS suggested that TVNZ did not put the material to the Eathornes, or ask for their consent to obtain material from CYFS. It noted that TVNZ had not mentioned the risk of defamation at any stage prior to its response to the complaint.

[104] Noting TVNZ’s submission that only what had been “legally established” could be presented on the programme, CYFS argued that whether a fact had been legally established was not a relevant consideration to take into account. Most of the broadcast had not been legally established, as it consisted of the views and opinions of the people interviewed by Sunday. It maintained that the failure to put forward CYFS’ side of the story had led to a programme which was unbalanced, inaccurate and unfair.

Authority's Determination

[105] The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

Summary

[106] The Authority upholds CYFS’ complaint that the broadcast breached Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice for the reasons outlined below.

[107] First, it upholds the complaint under Standard 4 (balance) on the grounds that TVNZ failed to present a critical piece of information that all three foster children had independently reported the same abuse in evidential interviews.

[108] Second, it upholds the complaint under Standard 5 (accuracy) because the item inaccurately stated that CYFS had “accepted” and “agreed to” the Eathornes’ plea bargain, when CYFS was not involved in that process.

[109] Finally, the Authority upholds the complaint under Standard 6 (fairness), finding that the breaches of balance and accuracy contributed to the unfairness to CYFS. In addition, the programme failed to explain that CYFS’ responsibilities regarding the care and protection of vulnerable children run parallel to any criminal charges. The Authority finds that the programme should have explained that CYFS was bound to consider all relevant information in reviewing the Eathornes’ caregiver status, not merely the outcome of the criminal proceedings.

Standard 4 (balance)

[110] Standard 4 requires that balance be provided when controversial issues of public importance are discussed. On this occasion, the item discussed whether CYFS had acted reasonably in removing two foster children from their foster parents, and then refusing to return the children following the outcome of criminal proceedings.

[111] In previous decisions, the Authority has often subsumed or declined to uphold complaints under the balance standard where a programme has focussed solely on an individual case, rather than a wider issue of public importance (see for example Decision Nos. 2006-035 and 2005-081). However, although this item discussed an individual case, as opposed to the wider issue of CYFS procedures, the Authority observes that CYFS is the government department that is charged with the care of vulnerable children. Therefore, the reasonableness of its actions in each individual case is of significance and concern to New Zealand society. Accordingly, the Authority considers that the item discussed an issue to which Standard 4 applies.

[112] In its balance complaint, CYFS argued that the item failed to present significant perspectives on the following issues relating to the reasonableness of its actions:

• whether it was reasonable for CYFS to remove the children without consulting the Eathornes or anyone in the community
• whether it was reasonable for CYFS to get the police involved which led to the prosecution of the Eathornes
• whether it was reasonable for CYFS not to return the children to the Eathornes after they were convicted on the smacking charges.

 Whether it was reasonable for CYFS to remove the children without consulting the Eathornes or anyone in the community

[113] CYFS argued that statements in the programme had implied that it had acted inappropriately by removing the children without consulting the Eathornes or anyone in the community. It pointed specifically to a statement by the reporter that CYFS “swooped” into the community, and comments from Ann Eathorne’s daughter and brother-in-law. The complainant stated that the item should have made it clear that CYFS’ standard process is to ensure the children’s safety first, and then investigate the allegations of abuse afterwards.

[114] The Authority observes that the Eathornes and their family members were entitled to express their opinion that CYFS should have consulted them before removing the children. Further, it notes that the reporter asked Owen Byfield “But faced with allegations like that, don’t CYFS have a duty to remove those children from Ann and Don’s care?”, which put forward CYFS’ viewpoint. Furthermore, statements in the item referred to the fact that CYFS had removed the children because of serious allegations including an assault with a golf club.

[115] Accordingly, despite the opinions expressed by members of the Eathornes’ family, the Authority considers that the reasonable viewer was given sufficient information to conclude that CYFS acted reasonably in removing the children immediately after serious allegations of abuse had been made. It was therefore not necessary for TVNZ to refer explicitly to the fact that this was CYFS’ standard process. The Authority does not uphold this aspect of the balance complaint.

Whether it was reasonable for CYFS to get the police involved and prosecute the Eathornes

[116] In CYFS’ view, the programme implied that police and lawyers should not have become involved in the Eathornes’ case. It pointed to the following statements in the item:

Reporter:           But if CYFS had asked around this community in the first place, Owen Byfield
                         believes police and lawyers may never have become involved.

Owen Byfield:    Why didn’t they just go and talk to them? Why get the police involved at that
                         stage? Why not go and talk to Ann and Don, just as people? This whole thing
                         has got out of hand.

[117] The complainant argued that the programme did not make it clear that CYFS has no option but to involve the police when serious allegations of abuse are made. However, the Authority considers that the reasonable viewer would appreciate that police involvement was inevitable in this case, particularly in light of the allegation of assault with a golf club. The Authority also finds that viewers would recognise that Mr Byfield was expressing his own opinion as a member of the Eathornes’ family, and would have assessed the weight to be given to his comments accordingly. Therefore the Authority does not uphold this part of the balance complaint.

Whether it was reasonable for CYFS not to return the children to the Eathornes after they were convicted on the smacking charges

[118] CYFS argued that TVNZ had failed to adequately present its reasons for revoking the Eathornes’ caregiver status. These were:

• in addition to the allegations of smacking, the children had alleged that “serious, sustained and cruel” abuse had occurred
• all three foster children were evidentially interviewed, and all three children were consistent in their reporting of the physical abuse.

[119] Looking first at whether TVNZ was required to detail the nature of the serious allegations in order to provide balance to the Eathornes’ story, the Authority notes that the item made several references to this alleged abuse, including the allegation that Don Eathorne had hit one of the children with a golf club. The Authority also observes that the following passage from the interview with Lorraine Williams from CYFS was broadcast:

Ms Williams:     …we will not have children in placements where they are feeling unsafe, where
                        they feel they might be hit, where they feel they are not able to sit at a meal…

Reporter:          At this point Lorraine Williams listed the serious allegations from the children
                        against the Eathornes, allegations the Eathornes deny, allegations that were
                        never prosecuted in court and which we cannot broadcast, but allegations
                        which CYFS still believes did happen.

Ms Williams:     We have evidence from the children that we believe there were, much more
                        substantial abuse occurred, and we are acting on that. And I make no apology
                        for acting on that.

                         …I have read these children’s files. I have read these children’s files absolutely
                        thoroughly. I am convinced my social workers did an extremely good job and
                        robust social work was undertaken with these children.

                         …It appears that where there was really challenging behaviour, maybe the
                        Eathornes, the children weren’t as easy to manage. And that is something
                        that our social workers are very good at identifying. You know normal
                        discipline behaviour, and when it moves to abuse, and in this case the Eathornes
                        have pleaded guilty.

[120] In the Authority’s view, Ms Williams clearly conveyed the fact that CYFS had revoked the Eathornes’ caregiver status based on serious allegations of abuse. In these circumstances, the Authority finds that it was not necessary to specify the nature of those allegations in order to assist viewers’ understanding of CYFS viewpoint. It concludes that TVNZ did not breach the requirement for balance by failing to include this information.

[121] However, the Authority agrees with CYFS that TVNZ should have made it clear that all three children had been evidentially interviewed separately and were consistent in their reporting of the abuse. The Authority is of the view that the cumulative effect of several statements in the item would have led viewers to believe that the children – particularly the two boys – were untrustworthy. This impression would have led viewers to question why CYFS had not returned the children to the Eathornes, especially when the more serious charges had not been tested in court. The Authority notes that the item contained the following statements:

Reporter:                 Here’s where the story becomes extraordinary. Now the original complaint
                               came from a third foster child, a boy who stayed with the Eathornes for only
                               four days. He alleged that Don and Ann had beaten their permanent foster
                               son with a golf club. That triggered CYFS’ removal of the children, and the
                               police charging Don and Ann with cruelty… 

Maeradyth Cherry:   They were taken because of essentially a rumour that was started by
                               another little boy, and that’s not good enough…

Owen Byfield:           I don’t think [CYFS should have removed the children], because the
                               allegations were made by a kid that was known to stretch the truth. He was
                               there for a short time and ran away, and somehow or other that made Ann
                               and Don big ogres. The kid shouldn’t have been believed just like that.

Reporter:                 People here who knew the children believed the stories of golf club beatings
                               were just that, stories, made up by Ann and Don’s foster son to impress the
                               other foster child.

Ann Eathorne:         The school wrote a letter to say that the little boy had said on the day that it
                              was all his fault. He’d told another little boy lies and he was going to fix it
                              when he got home, but the boy was gone.

[122] In addition to these statements about the children, the Authority observes that the item portrayed the Eathornes as a strong family unit, particularly during the opening sequence to the programme. The Eathornes stated that they loved and missed the foster children who, they explained, had called them “Mum and Pop”. Because the family was portrayed in this way, the Authority considers that this would have contributed to the impression that the children were unlikely to be telling the truth about the more serious allegations.

[123] The Authority is of the view that a major focus of the item was whether CYFS had acted reasonably in refusing to return the children. As a result, the fact that all three children had been evidentially interviewed and were consistent in their evidence was a critical piece of information that was omitted from the item. Had viewers been made aware of this fact, the Authority considers that it would have contributed substantially to their understanding of CYFS’ position that it had a sound basis for not returning the children to the Eathornes.

[124] Accordingly, because TVNZ failed to present a key piece of information that was critical to viewers’ understanding of CYFS’ perspective, the Authority considers that the broadcaster did not meet the requirement for balance in Standard 4. It upholds the balance complaint on this basis.

Standard 5 (accuracy)

[125] The complainant has identified several alleged inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority now considers each allegation in turn.

“…and Don and Ann Eathorne’s track record as foster parents was impressive, until one little boy came to stay with them”

[126] CYFS stated that, in actuality, there had been several ongoing concerns about the Eathorne’s parenting skills, and the couple had been the subject of two previous allegations of physical abuse that had not been substantiated. On the other hand, TVNZ pointed out that CYFS had placed twenty children with the Eathornes, and it referred to statements from the Eathornes’ file which suggested that they were valued foster parents.

[127] The Authority notes that, in her interview, Lorraine Williams accepted that many of the Eathornes’ previous foster children would have had a positive experience with the couple. The Authority also refers to the following passage from CYFS complaint:

In 2002, there were two allegations of abuse from two children who had previously lived with the Eathornes. These children were relocated and their allegations investigated. The claims could not be substantiated and the Department retained confidence that the Eathornes were providing a safe and secure home for foster children.

[128] Taking into account the number of children that had been placed with the Eathornes and the fact that CYFS itself was satisfied that the previous allegations were not substantiated, the Authority concludes that it was not inaccurate or misleading to describe the Eathornes’ track record as “impressive”. 

“But those smacks have led to the Eathornes facing criminal charges”

“Ann’s now paying dearly for the day clear thinking went out the window”

“What [Ann Eathorne] did is against CYFS rules, and all the current thinking. But at the time she says she told CYFS, and the family went on with their lives, little knowing that four years later those four whacks on the hand would become part of a police investigation, a criminal conviction, and the enforced break up of a family”

[129] CYFS has argued that the above statements were misleading because they presented the smacks with the wooden spoon as the focus of the police case. In fact, it said, a range of allegations of sustained physical abuse had resulted in the Eathornes facing charges.

[130] In the Authority’s view, the item made it clear that the smacking charges were only one part of the criminal case against the Eathornes. There were several references in the item to the more serious allegations of abuse, including the statements by Lorraine Williams (see paragraph [119]). For example, the Authority notes the reporter’s statement that “the police laid charges against the Eathornes, including the golf club assaults and more”. As a result, the Authority considers that viewers would not have been misled about the nature of the charges facing the Eathornes. It declines to uphold this part of the complaint.

“[the foster child] smashed $5,000 worth of windows in a tractor that belonged to the Eathorne’s employer”

[131] CYFS said that it had no record of this incident, and therefore it argued that TVNZ should not have stated as a fact that the foster child had damaged the tractor. However, TVNZ said that it had verified that this incident had occurred by speaking to witnesses, and it pointed out that the judge who sentenced the Eathornes accepted that the child had caused “considerable damage to property”. The Authority accepts TVNZ’s evidence on this point and, accordingly, it declines to uphold this part of the accuracy complaint.

Reporter’s question “Can you honestly tell me that is all the corporal punishment, the physical punishment, you handed out?” and Ann Eathorne’s response “That is all I’ve ever done”

[132] In CYFS’ view, TVNZ had accepted Mrs Eathorne’s statement and had “allowed a mistruth to stand unchallenged”. However, the Authority notes that the accuracy standard only applies to “points of fact”. In this case, Mrs Eathorne’s reply was clearly distinguishable as her comment in response to the reporter’s question. Accordingly, it was not a point of fact to which Standard 5 applies.

“Here’s where the story becomes extraordinary. Now the original complaint came from a third foster child, a boy who stayed with the Eathornes for only four days”

[133] CYFS contended that this statement misled viewers by omitting the fact that the child had run away from the Eathornes due to the alleged physical abuse that was being meted out to the children. In order for the Authority to make a finding on this aspect of the complaint, it would have to determine whether or not the Eathornes were guilty of the serious allegations of abuse. However, that is the role of the criminal court. The Authority is not the appropriate body to determine this matter and, accordingly, it declines to determine this part of the complaint. 

“But there’s the thing. Just before the case was due to go to trial, the charges were dropped.”

“Yet when it came to court, the prosecutor and CYFS agreed to drop those serious allegations that the Eathornes have always denied. One charge remained…”

[134] In CYFS’ view, the item implied that the more serious charges had been “dropped” because there was insufficient evidence for the police to continue the prosecution. The Authority does not agree that the item left this impression. It finds that the item made it clear that the Eathornes had entered into a plea bargain to avoid the more serious charges, and that this had also meant the children did not have to testify in court. In particular, the Authority points out the following passage from the programme:

Reporter:             …so Ann and Don pleaded guilty to assault with a wooden spoon

Ann Eathorne:     It was just so scary, that when they brought that plea bargain to us, it sounded
                          good. Like we could go home, and that’s what we wanted to do

Reporter:            CYFS also accepted the plea bargain because they wanted to spare the
                          children having to testify in court.

[135] The Authority declines to uphold this part of the complaint.

“But…the people in their community that we spoke to, said they never saw any evidence of those allegations either”

“People here who knew the children, believed the stories of golf club beatings were just that, stories, made up by Ann and Don’s foster son to impress the other foster child”

[136] CYFS questioned who TVNZ had spoken to in the community, and why they were not prepared to speak on the record. It questioned whether TVNZ’s information sources were impartial or reliable. However, in the Authority’s view, TVNZ was entitled to report the fact that it had spoken to members of the community who had not seen any evidence of abuse. It considers that it was not necessary for TVNZ to identify its sources, and it appreciates that the people interviewed may have wished to remain anonymous in light of the sensitive matters being discussed. Accordingly, the Authority finds that Standard 5 was not breached in relation to these statements.

Reporter’s statement that “In the end, all that was legally established were four smacks on the hand with a wooden spoon”

[137] While it accepted that this statement was factually correct, the complainant argued that it was misleading because it implied that the other instances of abuse were in question. This was refuted by the original police summary of facts, it said. However, the Authority agrees with TVNZ that the police summary of facts is not proof that these instances of abuse actually occurred. It considers that the statement above was an accurate statement about what had been established in court. The Authority does not uphold this part of the complaint.

Ann Eathorne’s statement “It was just so scary, that when they brought that plea bargain to us, it sounded good. Like we could go home, and that’s what we wanted to do”

[138] CYFS said that the Eathornes accepted a plea bargain to avoid more serious charges, but Mrs Eathorne’s statement had portrayed their motivation for accepting the plea bargain as being due to a lack of sophistication. In the Authority’s view, this was not presented as a statement of fact about why the Eathornes accepted the plea bargain. Rather, it was clearly distinguishable as Mrs Eathorne’s comment about how they felt about the plea bargain. Accordingly, the accuracy standard does not apply and this part of the complaint is not upheld.

Don Eathorne’s statement “I don’t think that we will ever be allowed to contact them either. So it’s pretty sad, because they were our children at the end of the day – after four years, they were part of us”

[139] As above, the Authority finds that the accuracy standard does not apply to Mr Eathorne’s remarks. This was not a statement of fact about the access rights the Eathornes had been granted. Instead, it was clearly presented as Mr Eathorne’s opinion and comment about whether he thought they would see the foster children again. Accordingly, the Authority declines to uphold this aspect of the complaint.

“…the prosecutor and CYFS agreed to drop those serious allegations”

“CYFS also accepted the plea bargain, because they wanted to spare the children having to testify in court”

[140] CYFS said it was not one of the parties who arranged or approved plea bargains, and therefore it was misleading to imply that CYFS’ approval was part of the process. In response, TVNZ has not offered any direct evidence that CYFS played any part in the Eathornes’ plea bargain.

[141] Based on the information provided, the Authority accepts CYFS’ evidence that it does not arrange or approve plea bargains in criminal proceedings. As a result, it finds that CYFS did not “agree to” or “accept” the Eathornes’ plea bargain. Therefore the Authority concludes that the above statements in the item were inaccurate and in breach of Standard 5.

Standard 6 (fairness)

Unfairness to CYFS

[142] The Authority upholds the complaint that CYFS was treated unfairly in the programme for the reasons outlined below.

[143] First, in paragraphs [121] – [124] the Authority has found that the broadcast breached Standard 4 (balance) by failing to include the critical fact that the three children had each been evidentially interviewed and were consistent in their reporting of the serious allegations of abuse. Because this information was not broadcast, the Authority considers that viewers would have been left with an inadequate understanding of CYFS’ reasons for not returning the children to the Eathornes. Because the item questioned whether CYFS had acted reasonably in refusing to return the children, the Authority finds that the omission of this information was unfair to CYFS and contributed to a breach of Standard 6.

[144] Second, the Authority considers that the programme purported to measure the reasonableness of CYFS’ actions only by reference to the outcome of the criminal proceedings. Several statements in the item implied that, because the Eathornes had only been convicted on the smacking charge which CYFS had known about for four years, it was unreasonable for CYFS to then withdraw the Eathornes’ caregiver status. For example, the following exchange between the reporter and Lorraine Williams:

Reporter:                But the couple deny all those allegations, and the people in their community
                              that we spoke to said they never saw any evidence of those allegations either.

Lorraine Williams:   The Eathornes have pleaded guilty.

Reporter:                To one allegation.

Lorraine Williams:    To abusing these children.

Reporter:                Which they’ve always told you about, you’ve always known about. They
                              admit one thing that’s four years old.

[145] In addition, the Authority notes the reporter’s comment “…did CYFS act in the best interests of two vulnerable children at the centre of this case? In the end, all that was legally established were four smacks on the hand with a wooden spoon”.

[146] CYFS has argued that, in determining whether or not to return the children to the Eathornes, its duty was not to simply consider the outcome of the criminal proceedings. Rather, CYFS’ processes in respect of the care and protection of vulnerable children run parallel to any criminal charges, and are overseen by the Family Court. The Authority acknowledges that the criminal standard of proof (“beyond reasonable doubt”) does not apply when CYFS is dealing with allegations of abuse, as the Department is required to err on the side of caution when protecting the interests of foster children.

[147] Despite this, the programme implied that CYFS should not have based its decision to remove the children on allegations that had not been proven in a criminal court. In the Authority’s view, CYFS was treated unfairly because TVNZ did not explain to viewers that CYFS’ processes are independent of any criminal charges that might also be laid, and that it does not apply the same standard of proof when assessing whether a child is at risk. Even in cases where no criminal charges have been laid, CYFS is entitled to take reasonable actions to protect the interests of its wards. Accordingly, the Authority considers that the programme’s approach contributed to the breach of Standard 6.

[148] Lastly, the Authority has upheld the Standard 5 (accuracy) complaint about the statements in the item which said that CYFS had “agreed to” and “accepted” the Eathornes’ plea bargain. In the Authority’s view, this inaccuracy also resulted in unfairness to CYFS, because it portrayed the Department as having acted inconsistently. The Authority considers that viewers would have questioned why CYFS was now relying on the more serious allegations as a reason to revoke the Eathornes’ caregiver status, when it had been willing to drop those charges against the Eathornes. In fact, CYFS was not a party to the plea bargain and, as outlined above, it was not bound to rely solely on charges that had been proven in court when it reviewed the Eathornes’ status as foster parents.

[149] In the Authority’s view, the overall impression which was left as a result of these three elements of the programme was unfair to CYFS and in breach of Standard 6.

[150] However, the Authority does not uphold CYFS’ complaint that the broadcaster treated the Department unfairly by failing to outline the nature of the more serious allegations of abuse made by the children. As discussed in paragraphs [119]–[120] of the balance section, the Authority considers that the programme adequately conveyed the fact that those other allegations existed and that they were of a serious nature, including assault with a golf club. The Authority does not consider that it was necessary to detail the exact nature of the allegations in order to treat CYFS fairly. Accordingly, it declines to uphold this part of the fairness complaint.

Unfair portrayal of children

[151] The Authority also agrees with the complainant that TVNZ unfairly portrayed the children involved in the Eathornes’ case. As discussed in paragraph [121] of the balance section, the Authority considers that the programme contained several statements that portrayed the children as untrustworthy, particularly the two boys. Against that, however, is the information provided by CYFS (which was not broadcast) that the children had reported the same abuse in separate evidential interviews. Because the item omitted this information which would have significantly altered viewers’ impressions of the children, the Authority considers that TVNZ treated the children unfairly and in contravention of Standard 6.

[152] However, the Authority does not uphold CYFS’ complaint that the reconstructions of the acts of vandalism had maligned the reputation of the foster boy. The Authority has accepted TVNZ’s evidence that these incidents occurred, and it finds nothing unfair in the way in which the programme reconstructed and presented the events.

Bill of Rights

[153] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast of Sunday by Television New Zealand Ltd on 9 April 2006 breached Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[154] Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[155] CYFS stated that the programme had caused significant harm to the children involved, the social workers directly involved and CYFS staff in general. It also said that public confidence in CYFS would have been eroded as a result of the programme. Although it had incurred significant costs in bringing the complaint, CYFS said, it had decided not to ask the Authority to make an order for costs.

[156] The complainant submitted that the Authority should order TVNZ to broadcast a statement summarising its decision, including a correction to the matters that were inaccurately reported. It contended that the statement should include an apology to the children, to the staff involved, and to CYFS. CYFS argued that the statement should be broadcast at approximately the same time, and on the same channel, as the original broadcast.

[157] TVNZ submitted that no order was appropriate on this occasion. It noted that the Authority had declined to uphold many aspects of CYFS complaint, and it disagreed with several aspects of the Authority’s decision.

[158] In response to TVNZ’s submissions, CYFS argued that several of the broadcaster’s contentions were inaccurate. It also maintained that the publication of the Authority’s decision would not be sufficient to “address the hurt and distress of the people affected” by the programme.

Authority’s Decision on Orders

[159] The Authority considers it appropriate to order TVNZ to broadcast a statement summarising the upheld aspects of the Authority’s decision. However, the Authority declines to impose an order requiring TVNZ to broadcast an apology to any of the parties nominated by CYFS. Apologies have been ordered rarely and only in exceptional circumstances, and the Authority does not consider that such an order is required in this case.

[160] Costs to the Crown are generally imposed to mark the Authority’s disapproval of a serious departure from broadcasting standards. Taking into account all the circumstances of this case, including the fact that it has upheld breaches of three standards, the Authority considers that such an award is appropriate on this occasion. It concludes that TVNZ should pay costs to the Crown in the amount of $2,000.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within six weeks of the date of this decision during a programme similar to Sunday, at a time to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,000, within six weeks of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 December 2006

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1     Child, Youth and Family Services’ formal complaint – 18 April 2006

2     TVNZ’s decision on the formal complaint – 16 May 2006

3     CYFS’ referral to the Authority – 16 June 2006

4     TVNZ’s response to the Authority – 14 July 2006

5     CYFS’ final comment – 3 August 2006

6     CYFS’ submissions on orders – 8 November 2006

7     TVNZ’s submissions on orders – 17 November 2006

8     Further submissions from CYFS – 27 November 2006