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“Blood on her hands”

 

Ben Butler convicted of the murder of his girlfriend’s daughter Ellie, in the criminal Court.

Ellie had been removed from the care of Ben and Ellie’s mother (who was convicted of child cruelty and perverting the course of justice) in 2007 by the family Courts with findings made that they had caused her a serious injury  and placed with Ellie’s grandparents.

In 2012, Mrs Justice Hogg overturned the previous findings and returned Ellie to the care of Ben and Jennie Gray. The Judge had said that fresh medical evidence showed that the previous findings were wrong, and that Ben and Jennie were exonerated and that it had been a miscarriage of justice and that it was a joy to be able to return Ellie to their care.

 

The case was widely reported as a miscarriage of justice in the family Courts, put right by Mrs Justice Hogg and the unusual step was taken to name the family in the judgment, so that everyone could see that their names were cleared.

 

https://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/

 

Eleven months later, Ellie was dead.

 

At the hearing before Mrs Justice Hogg, we now learn that Ellie’s grandfather warned Mrs Justice Hogg that she would have ‘blood on her hands’ if she returned Ellie to Jennie and Ben.

 

You can read about the murder trial here, and the guilty verdict. It was a vicious attack, cynically covered up by the couple, including arranging for Ellie’s sibling to find Ellie’s body 2 hours after the death.

https://www.theguardian.com/uk-news/2016/jun/21/ben-butler-found-guilty-of-murdering-six-year-old-daughter-ellie

 

One shudders now in retrospect (knowing what we know about both parties) about the detail that Ben and Jennie employed Max Clifford to run a PR campaign for them in their fight to get Ellie back.

It is really important here not to be wise after the event. The judgment given by Mrs Justice Hogg (which sadly has been taken down from Bailii so as not to prejudice the criminal trial, but which ought in the public interest to go back up) was one that I read at the time, as so many others did, of a case involving very complex medical evidence in a field (shaking injury) which is very medically controversial and with fresh evidence emerging which showed an organic cause for the injury which meant Ben and Jennie were blameless.  The case involved multiple medical experts, whose evidence was pored over by extremely able Silks and lawyers, in front of a very experienced High Court Judge who has always been conscientious and dedicated.

The Local Authority fought very hard to stop Ellie being moved from her grandparents, and her grandparents also resisted it. That meant that all of the evidence was gathered and tested – as fiercely as everyone involved was able to. This was not a rubber-stamp, or a rushed decision. It was a judgment that had all of the safeguards and protections that our system can muster  (a range of experts, all the documents obtained, the evidence tested and tested hard, and a Judge who knew her stuff)

There was nothing within that judgment to make one feel AT THE TIME, that this was a terrible tragic mistake.

But it was.

Even with all the protections of the system, the Court system on this occasion got a decision wrong. And as a result, a child who was safe, is now dead.

That doesn’t mean that we get to apply hindsight and seek to pass blame. The persons responsible for Ellie’s death were Ben and Jennie. Not this Judge. Not the experts who thought there was an innocent explanation for the earlier injury. Not the lawyers who fought fearlessly and to the best of their ability for Ben and Jennie. Certainly not the Local Authority, who fought to prove that Ben and Jennie had hurt Ellie before and would do so again.

Even when you pore over every scrap of paper, hear every shred of evidence, hear all of the arguments and can be sure of your conclusions, predicting the future is an uncertain business. And from time to time, we need to be honest and acknowledge that.

The EVIDENCE that Mrs Justice Hogg heard pointed her to a conclusion that Ben and Jennie had been wrongly accused and had paid for it with the loss of their child, and the EVIDENCE drove her to wanting to put that right. The EVIDENCE that we now have is that this was the wrong decision. But how can a Court decide any other way than on the EVIDENCE that it has at the time?

The system got it wrong here, in deciding what had happened in the past and what would happen in the future, and with awful consequences. The system in the past has got it wrong the other way and removed children that could and should have stayed at home. The system will continue to make mistakes, no matter how hard we try, because human beings are not built to predict the future.  We make all efforts to ensure that we get it right, but we can’t always.

I am very sure how the Press would have handled this case if it had been a social worker who had taken the child away from grandparents and put her back with Ben and Jennie.  The headlines write themselves. The clamour for sackings and heads must roll, and this must never happen again.

Seeing that even a High Court Judge, seized with all of the evidence, with the luxury of seeing that evidence tested as hard as evidence ever can be, can make a mistake reminds us that human beings are beautifully and fearfully made, and all of us have fragility.

 

Mrs Justice Hogg has retired now, and I am sure that the consequences of her decision will weigh heavily on her.

Perhaps this story shows us that sometimes, in assessing the EVIDENCE that one has at the time decisions can be made by very bright, very capable, very conscientious people wanting nothing more than to get things right and to be fair, but still be wrong, and that our knee-jerk Witch-Hunt blame culture doesn’t take account of that, and the inherent difficulty that child protection involves.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

55 responses

  1. A moving and thoughtful post. Thank you.

  2. It is absolutely awful what Ben and Jennie did to Ellie – they obviously are capable of hurting their child, and had injured her before – but does it follow necessarily that Mrs Justice Hogg’s original decision to overturn was wrong, and that they were guilty of the first shaking? …Remember there was no swelling to her head, she had a throat cyst that provided another reason for airway obstruction… etc. There were many reasons for expert uncertainty.

    This was a criminal and not a family court process, so must be more than probability. I would suggest that the Judge was wrong to return Ellie in their care, but for other reasons… and that it would have been quite possible for those reasons to have been brought out, if there was not such a narrow focus upon the shaking injury.

    • Indeed, that is possible. Not likely, but possible. We may know more when we see King J’s judgment in the care proceedings about Ellie’s sister after her death in 2014.

      The expert uncertainty meant that Mrs Justice Hogg was probably right to have found as she did in 2011, though it is inherently much more likely that this very abusive man and collusive woman had hurt Ellie and lied to cover it up.

  3. The judicial remarks on sentencing are interesting and worth reading. As a murder charge, he has to give a life sentence, but also gets to recommend a minimum time to be served – the starting point is 15 years. The Judge, due to the many aggravating features, not least the cover-up, gave Ben Butler 23 years.

    https://www.judiciary.gov.uk/wp-content/uploads/2016/06/r-v-butler-gray-sentencing.pdf

    And the Serious Case Review is here

    https://drive.google.com/file/d/0B5ILmebheQx3YmhvbjVYOHlpN2M/view

    Paras 7.2 and 7.3 are interesting

    7.2 The unanimous view of the various report authors and staff interviewed is that the outcome of this case hinged on the judgment from the High Court in July 2012. Professionals and family members alike believe that was the crux of the matter.

    7.3 After careful consideration I believe that the Judge’s finding of fact (or non finding) based on the balance of probabilities was not unreasonable. It was almost entirely based on the experts medical evidence which was weighed at length and in great detail.

    (It goes on to be critical about the Judge’s approach to the other issues on threshold and the general tone of the judgment being that the parents were being exonerated from a miscarriage of justice, and the impact that this had on the family’s unwillingness to work with professionals after Ellie was returned to their care)

    There’s a remark at para 7.3.6 taken from the Derby SCR (where Court placed child with father who then killed her) “Professionals should treat Court findings for what they are : a legal finding not a manifestation of truth” [This SCR doesn’t adopt that, but it raises that the Derby SCR ‘went so far as to say’ that this should be a lesson learnt. ]

    That’s worthy of a blog post on its own, to be honest. How many parents have lost their children because they refused to accept findings, and mother’s could not acknowledge that the father had caused injuries to a child or was a sexual risk? I’ve written about lots of them. We can’t have legal findings being something professionals can largely ignore and continue with their suspicions, whilst at the same time telling parents that if they don’t acknowledge the truth of the findings they’ll be deemed as not able to protect. That’s just not right.

    • “We can’t have legal findings being something professionals can largely ignore and continue with their suspicions, whilst at the same time telling parents that if they don’t acknowledge the truth of the findings they’ll be deemed as not able to protect. That’s just not right.”

      Not right for whom? The interests of the child are supposed to be paramount. The thresholds for conviction or Care Orders are (rightly) higher than the threshold for acting on concerns about a child’s safety. A court finding a parent not guilty (or not supporting a Care Order) should not deter health and social care professionals from acting if they continue to have concerns.

      No court is in a position to exonerate a parent of being a risk to a child – the court can only pass judgement on the specific case put to it. There may be many other reasons for professionals to continue to be concerned and it is absolutely right that these are pursued if a child is at risk. Mrs Justice Hogg’s appalling error was not that she accepted the medical evidence that Ellie’s injuries were accidental, but that she had the arrogance and sheer naivety to believe that it was therefore appropriate to order health and social care professionals to desist from protecting Ellie. There was no need to do that. It was gratuitous, capricious and presumptuous. She chose to make the justice system an enabler of Ellie’s killer.

      • Margaret McKenzie

        I wholeheartedly agree with what is said here. The balancing of risk is a difficult and ultimately imprecise science. What is unforgivable in this case is the tying of the hands of the responsible local authority to effectively protect this little girl following the decision

  4. Poor Justice Hogg, misunderstood, she’s just trying to do her best under difficult circumstances, she must have extraordinary powers of observation to ignore what was presented in court below:

    Hogg knew of Butler’s violent past and his criminal convictions but judged him to be a “thoughtful, reflective person”.
    She dismissed the account of a doctor who was concerned about aggression and bullying of Gray by Butler. Dr Haswell said he saw “the parents arguing, the father poking the mother in the chest and forehead and being aggressive”. Hogg judged he had “misinterpreted” the scene, noting the medic was a “young, well meaning, but inexperienced and very junior doctor”.
    She dismissed concerns that Ellie had been brought to hospital at seven weeks old with evidence of historic burns to her forehead and hand. Butler had said the baby had rolled over and hit an electric heater.
    She ruled Butler’s relationship with Sutton council was “doomed to failure” and agreed to appoint a private firm, Services for Children, to assess him and Gray.
    Hogg also heard a heart-felt plea from Ellie’s grandfather, who warned her she would have “blood on her hands” if Butler regained custody.

    • Hmmm. That’s quite a selective summary of a very long judgment. I think with hindsight, you can see that the medical evidence was pointing to there being an organic cause for the child’s head injuries and the Judge having concluded that the main reason for the child being removed from them and placed elsewhere was wrong approached the rest of the case as a correction of an injustice. The medical evidence on the head injuries dominated everything else. In retrospect, of course wrong, but even the authors of the Serious Case Review (who could easily have placed all the blame on the Judge) didn’t feel that her decision about the head injuries was unreasonable.

      It does seem that she went down a path of ‘parents have been wrongly accused about this big thing, all the other allegations must be wrong too, and they should have this child back’

      I think she made serious mistakes, with terrible terrible consequences, but I don’t think she made mistakes because she was careless, lazy, sloppy or foolish – I think she was honestly persuaded by the evidence she heard that she was correcting a terrible miscarriage of justice. Doesn’t stop the outcome of that decision being wrong and having the worst consequences imaginable. And it would be hard to see how she could do a family case again – she retired just before the trial. How could she ever give a parent the benefit of the doubt, or make a decision about difficult medical evidence, with that weighing on her mind all the time?

      • I don’t think any reasonable person would accuse Mrs Justice Hogg of being lazy or foolish and what would be the point. This is a sad conclusion to an otherwise distinguished career. However, this doesn’t seem to be a case where the local authority case collapsed when challenged, rather that she preferred one set of evidence over another, as she was entitled to do. Surely, however she should have been more cautious in setting out the arrangements for returning Ellie to her parents, not least because Ellie was happy in her family placement and would experience disruption and loss in leaving it which could make her return to her parents problematic for many reasons. I don’t know anything about the company which was given the thankless task of taking over from the local authority, and wonder if you do?
        Having read the full judgement SM are you really satisfied that the welfare of the child was truly at the heart of it? Genuine question for I shan’t have the time to do so. I follow your posts on cases with interest but I sometimes get the impression that judges, confronted by conflicting evidence, do not consider enough the effects on children’s lives if they are wrong.

      • That’s a very good question. I have to be brutally honest and say that when I read the judgment AT THE TIME, it genuinely looked like a case with very complex medical evidence where vital fresh medical evidence had come to light which changed a finding of very serious deliberate harm by a parent to a benign organic cause. That’s how I read it AT THE TIME. It read as a judgment where the family Court had got it wrong the first time, and had put it right later. AT THE TIME, that’s how all of the mainstream Press reported it, and how it was viewed by most parents and lawyers and legal commentators. That’s one of the reasons why I linked my previous piece – I wasn’t AT THE TIME saying “Oh, this is awful, this Judge has got this badly wrong”

        With hindsight, of course we can now see that the Judge was fooled by these parents, and did not give enough attention to the many other concerning issues in the case, and put too much weight on ‘fixing a miscarriage of justice’ and not enough on how the child would be in the future. But the Judge had to give the judgment AT THE TIME.

        It turns out that she was wrong, badly wrong. But the newspapers who doorstepped her yesterday weren’t saying AT THE TIME that she had made a mistake, they are being wise after the event. Which is easy.

        The SCR is very interesting on the flaws in the process and the judgment, and most importantly that what happened after it was the parents feeling bulletproof and able to be completely unco-operative and shut professionals out. They completely agree with you on the failings in the rehab and protection plan process and on the external company, as would I.

        You raise an extremely good point about whether the system, throughout, needs to give more consideration to the question “What if I am wrong about this?” because we do, in law, approach judgments as being certainty and the last word, but of course we can’t ever be 100% sure.

  5. I agree that only the perpetrator of this vile murder should be blamed. I also agree that the findings based on the medical evidence alone are not unreasonable.

    However, the certainty in the findings expressed by the Judge ( the father “had never caused harm to his child, in fact there was an innocent explanation for his child’s suspected injuries”) does leave this to be wide open for critique. Additionally, the LA and SCR also say they feel the non-medical evidence was not given enough scrutiny.

    Findings are what they are – the balance of probabilities. The attacks on LAs, Guardians, grandparents and others for seeking to have findings made is endemic and unhelpful to the furtherance of child protection. This is a case where the protection of this child post proceedings was directly affected because the Judge was so critical of those seeking to have findings, which turned out to be factual, made in the first place. The parents were supported by the court in their refusal to engage with the LA (upon a narrative that the LA were being unreasonable, which they were not); this left the LA powerless to intervene post proceedings.

    Additionally, there is rightly a need to get to the bottom of the how the judiciary do or do not engage with serious case reviews. Many SCRs following care proceedings simply critique the professionals, because to criticise the court feels beyond reach, which is unfair and unbalanced. This is the first, to my knowledge, SCR where the decision of a Judge has been questioned publically.

    I, for one, will be interested to see how the President responds to the recommendation in this review and also how the judiciary will or will not engage with the new systems proposed for reviewing child deaths upon the abolition of LSCBs proposed by Alan Wood.

    • The recent Derby one (similar in that the Court sanctioned a placement with father, who killed the child, different because it was by agreement rather than contested) is very critical of the Court process, in particular the slavish adherence to 26 weeks and the feeling by all that if they had asked for more time to carry out more assessment and go over the 26 weeks it would have been refused.

      I think in a case of this kind, the judiciary should have engaged in the SCR.

  6. Interesting post. Tragic case. Frontline practitioners greatest fear, is getting it wrong, despite every good intention and plenty of hard-work.
    1. It it possible to see the initial court evidence from the burn, given that she would have been an immobile child, plus the details of the suspected AHT leading to the imprisonment. These would have been cumulative in their weighting towards likely abuse ?
    2. How can one obtain the subsequent high court judgement details from the appeal case and the medical evidence presented ? Are we able to know which medical experts were called to give evidence ?
    3. My understanding is that the conviction was overturned on appeal as it did not meet beyond reasonable doubt. Was it really felt that the evidence did not meet balance of probability?

    This topic requires such a good understanding of study methodology in order to unpick the conflicting, ever evolving published medical evidence. Geddes hypothesis is good example of this.

  7. I’ve read the entire judgment before it was pulled due to restrictions. I have also followed all the evidence of the Defence’s medical experts from both trials on Ellie, the American “guns for hire”. Have you read the GMPTS findings on some of these experts. Additionally, Hogg went way too far. I could go on and on. Interview Mr Gray and assist him to gain the public enquiry he wants, now that would be useful.

    • We cannot predict the future (unless your Ellie’s grandad, who actually did predict the future), nor can we escape that Ellie was placed with loving grandparents because there was masses of EVIDENCE to suggest Ben Butler was a violent, dangerous and controlling man (not only assaults against a child), everybody knew this, neighbours, associates and family. I agree we should not judge in retrospect, but I am curious when the EVIDENCE of Butlers vicious rage, stopped being valid EVIDENCE? Did Ben Butler engage in therapy? How did he stop being a violent and dangerous man? What convinced Judge Hogg that he was reformed and fit to parent a child? A child who was happy and loved her grandparents, was the child’s voice heard? Was Ellie’s voice EVIDENCE? This is not blame in retrospect so much as a question as to what EVIDENCE the judge chose to consider and what she didn’t?

      This case tragically highlights a very broken and inadequate system. It brings to question what is EVIDENCE? The voice of the child? The grandparents? The neighbours? Professionals (many of whom are lost in bureaucratic processes, EVIDENCE gathering from other professionals and bear no real insight into the world of the child)?

      The recent Wood report demonstrates a further re-boot to inadequacy, a bureaucratic, EVIDENCE gathering machine is no panacea, it never was, never will be, relationships, community and social interaction make all the difference. Maybe it’s time the Munro recommendations finally got implemented? The Wood report offers nothing but a further disassociation from the real world of the children and families already lost in statistics, bureaucracy and so called EVIDENCE. Seems to me, the importance of relationships also got lost, somewhere in the vain predictions of those who gather and interrogate the EVIDENCE. Are these also the folk that judge the rest of us in retrospect, utilising the laws of the land to justify doing so? Now it’s the judiciary in the spotlight, but don’t judge (apart from anything, you probably don’t have the qualifications or the wig). Maybe, just maybe, the judiciary has become riddled with an arrogance to all consuming to recognise there maybe gaps in their knowledge or that what they believe is EVIDENCE is actually just another professional sharing an OPINION….. is opinion EVIDENCE, or does that depend on whose opinion it is?

      As predicted, by one who did not claim to predict the future, Judge Hogg does indeed have blood on her hands. It’s one tragic prediction we can judge in retrospect as 100% accurate!

  8. I could be generous and say “mistakes happen” even to very experienced judges, but as this horrible case highlights, mistakes should not happen. By all means – this is why these case are in a family court, the official body of protection, fairness and justice. Any justice system and it’s judges exist to protect the vulnerable not aid criminals and perpetrators, however unwittingly. What happened here?

    HH Judge Hogg unfortunately had a historic pattern of making very generous judgments for abusive men. Over the last years I repeatetly heard from mothers whose children were handed over to abusive – evidently – former partners, thanks to Judges likes HH Hogg. It appeared to me already years ago that she is kind of blind on that eye.

    Judges have to go by evidence. Yet in the family court they also have to go by psychological intuition and knowledge of the human capability to deceive, plot, abuse and cover up. They also need to take into account that the court system itself is full of careerists and opportunitsts. By all means – not all the hangers-on to the court system (experts) should be there.

    Judges have themselves personal histories. Many of them had no happy childhoods either. Many battle depression and their own personal demons. They are only human after all. But they are “the center of their courts”. King or Queen of a court, or not, Judges who may had themselves a history of neglect, emotional and physical abuse and similar in their childhood (it is dreadfully common) – how fit are they actually to make rulings? How fit is anybody to make rulings? What has to happen to make this system much much much better?

    As far as I know there is no emotional fitness supervision system for judges in place. Yet, seriously, there should be one. Not only for HH Hogg.

    Can you please be so kind, dear Suess, to provide me with a reference to the experts in this case? In particular the final – fatal – ruling.

    Poor child. May she rest in peace & power.

  9. Thanks for this post. I have been upset to see all of the criticism of this Judge, who no doubt has made many excellent decisions over her career that have protected many children. Now she will be remembered for this: a decision she carefully made based on all of the available evidence with the child’s best interests her aim.
    This is not a job many can do, but a job that we need the right people to do. Criminalising those who do it is not going to help. As you say, the only people responsible are the evil people who actually murdered the child.

  10. It seems to me, having considered the SCR, that the problem here was in fact the judgment. A finding on the balance of probabilities usually means that there may be a possibility the parent caused significant harm, just not a probability. In this case, Hogg J closed off this rationalisation by exonerating the father. The LA therefore no longer even had suspicion of harm to consider in operational decisions. Had the exoneration not been given, some longer term engagement could have been justified. As a result of the exoneration, it wasn’t and S4C had the limited brief of retuning Ellie to her abuser and not supervising her life thereafter.

    • Yes, the narrative theme of ‘the father has been wrongly accused, deprived of his child and locked up, and now I can put that right’ runs very powerfully throughout the judgment. AT THE TIME, that looked like the right thing. Looking at it now, it doesn’t weigh up sufficiently the many other concerns and the need to tread carefully. It’s a very powerful narrative though, and one that all of the Media who are now queuing up to give the Judge a kicking were praising her for at the time.

      • Although Mrs. Hogg clearly believed at the time that Butler had been the victim of a miscarriage of [criminal] justice and had therefore been, in her view, wrongly incarcerated, her prime motivation when the matter came back before her in the family court should not have been to “put things right” and “exonerate” him; her prime focus should have been on the safety and welfare of the child. As others have commented, his release following a successful criminal appeal should not have automtically led the judge to conclude, on the balance of probablilities, that Ellie’s injuries had not been caused by shaking; the medical evidence was inconclusive and Butler had a history of criminal violence. Moreover, at that time, Ellie was happily settled with her grandparents who had, as I understand it, been granted a SGO.

        But the most astonishing features of this case were the decisions of Mrs. Justice Hogg to firstly appoint a private social work agency to oversee the care and welfare of this child – duties which would normally be the statutory responsibility of the local authority; AND, secondly, to issue an encyclical to the local authority and other public bodies which effectively precluded them from taking future action to protect Eliie, on pain of being summoned for contempt of court. I would be interested to learn from SM whether he knows of any such similar directive ever being issued by a family court judge because I, in 21 years of working as a Guardian in family courts, have not and I must say I find it breathtakingly extraordiary

      • Provincial Solicitor

        The idea of a “possibility” is closed off by the case of Re: B (2008) UKHL 35.

        Lord Hoffman stated “If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

        Therefore there is no room for grey areas – either something happened or it did not.

      • Thanks for forwarding this but my own comment on this topic appears not to have been posted – is there any reason for this?

        Barry Gibbs

      • Just as simple as WordPress means that I have to approve first time commentators, and I was stuck on the worst train in the world coming back from London. A train that a family who were visiting from India were loudly saying was terribly overcrowded…. Good comment, by the way.

      • Yes, the binary system here meant that once she had decided that the LA had not proven the head injury it was to be treated as though father had not done it = though the judgment is pretty clear that she goes further than that and actively exonerates him from any wrongdoing.

  11. Do the lawyers & barristers have any culpability? Looking for experts who will give them the ability to explain away past injuries…

    • That’s a legitimate question. Lawyers and barristers have a professional duty to follow their client’s instructions (which here would have been ‘we didn’t do it, there must be a medical explanation’) and to present that case fearlessly and to the best of their ability. The parents barristers here were some of the very best around, so ‘to the best of their ability’ is very good indeed. If they don’t do that, they would be failing in their professional duty and could be struck off.

      NOW, an important caveat to that is that they cannot LIE to the Court – if either of these parents had confessed to them that they had injured Ellie, the barristers would not have run the argument before the Court. People often ask lawyers how we represent people we know are guilty, and it is as simple as this – thinking they are guilty, or believing or feeling they are guilty isn’t the same as KNOWING. Once you KNOW – by them confessing, then you can’t LIE to the Court.

      A good question, but no, the lawyers here were doing the job that they are charged with doing. If they didn’t do it, and picked and chose only to fight for people they KNEW were innocent, then there’s no fair trial.

      [I’m sure, regardless of that, that they FEEL absolutely dreadful, and that burden of ‘what if this case goes wrong in the future?’ can sit very heavily on even us heartless lawyers]

  12. Hindsight can give a clearer perspective than is available at the time, but it is rarely 20:20, and often harsh on those just trying to do their best.

    From what I can see, the judge probably went too far in her exoneration of the father, but I’m sure there were those who thought this was simply the just thing to do, given a believed miscarriage. I know that if I had been a truly innocent parent in this situation, that is what I would have wanted.

    Having listened to the grandfather on the radio this morning, it seems that the child feared contact visits, and would have been in a much better place (not least alive), if the grandparents had been granted the adoption order they sought. Based on the evidence available at the time, I’m still not sure what decision I would have made, but I might well have gone in that direction, not least because of the very positive outcomes I’ve seen with children I’ve fostered and who have then gone on to loving adoptions..

    As is hopefully clear from past comments, I’ve always taken the view that these decisions need to be taken on a case-by-case basis, and that sometimes forced separation of children from their the biological parents is the right thing to do.

    I know there are other regular commenters, who are certain that forced adoption is _always_ wrong, and in another recent case they were even putting forward that an adoption order should be set aside on the basis that the parents were cleared at a criminal hearing.

    I would genuinely be interested to know their views on this case, and whether the events here have done anything to shake their certainty that a child is _always_ best with its biological parents?

  13. Stefan Cross QC

    Do you have links to the original Hogg decision, King decision and the Derby SCR please

    • Neither of the judgments are up. The first two Hogg judgments were on Bailii (fact finding and disposal) but were taken down due to sub judice when Mr Butler was charged. King J’s 2014 judgment about Ellie’s sibling has never gone up.

      Derby SCR – Community Care piece here http://www.communitycare.co.uk/2016/05/13/failure-challenge-independent-social-worker-report-key-error-case-dad-beat-four-year-old-daughter-death/

      and SCR itself here
      http://www.hertfordshire.gov.uk/docs/pdf/h/hscbscrfinrep.pdf

      • Do you have hard or downloaded copies ?
        I am still baffled how the child’s reluctance to go the family home and the child’s attachment with the grandparents was put aside so lightly. Why was his previous sonvictions for ABH and the psychiatrists assessment of Dad put aside ? Why were the professional opinions of those working with the family disregarded. And why did no one mention that 5 week old babies cannot roll and therefore cannot sustain an accidental burn to the forheard and fingers. Even in the absence of a CP medical at the time, surely this would have added weight to the father notbeing a suitable care-giver. Why was the paediatricians concern that the child had started bed-wetting not taken seriously ? Why was there such a rush ? What therapeutic services did she receive to help with the transition and who from SC4 spoke to the child alone ? Why did she not have a CP medical when her grandparents alerted SS to the bruises ? She has an obvious squint at aged 6yrs- this would have needed surgical correction as a result of amblopia- well recognised fallout of medical neglect if not brough to eye appointments- Why was this not part of the worrying bigger picture that surrounded this family AFTER the public exonerration and return to the family home? Any other child without her background would have been referred to social services for an assessment… Do you know the name of the expert witness who was called and what “new” evidence had come to light to overturn the conviction ? What was the medical explanation for the RH and SDH (was she diagnosed with GAD ??) or BEAF- current thinking is that BEAF does not increase the liklihood of spontaneous bleeds.

      • LOTS of questions there.

        I summarise the medical evidence (and it is a summary) in the Tapestry of Justice piece. https://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/

        Racing through it SUPER quickly. The main concern was a head injury believed to have been caused by shaking. First family Judge found a shake, as did the first criminal trial. Dad then overturned conviction on appeal to Court of Appeal – on fresh medical evidence that the child had a cyst. It doesn’t seem to be in question that the child had a cyst, but the question for Hogg J was whether that meant that a minor incident short of abuse could have accounted for the head injuries. There wasn’t agreement between the experts, but at the end of their evidence it appeared that the majority opinion was that the cyst could have led to the head injuries being sustained with much less trauma than in a traditional abuse shaking injury. Also that medical opinion on subdural haematomas is continuing to develop and the cyst was a complicating factor which was hard to be definitive about.

        The experts were the most well-known ones in the field, and there were a LOT of them.
        That led to the Judge finding that the LA hadn’t proven that the father shook the child and the finding could not be made. That in turn, led to the Judge proceeding on the other aspects of threshold preferring the evidence of the father to the evidence of other professionals and finding that threshold was not made out. I’m not sure, without the judgment in front of me, why threshold was not satisfied on the basis of risk arising from his prior convictions, but it may be that updating risk assessments were that he had changed and would not be a risk in the future. That was certainly the judicial conclusion.

      • And it does seem that the observations about the child’s reactions to father and her reluctance were not given much evidential weight, compared to the narrative of ‘this man had his daughter wrongly removed and went to prison for two years wrongly, and now we can reunite this family and put it right’

  14. A Social Worker

    There are two issues here that I feel need to be highlighted

    1) Privatisation of social work – This is exactly why privatising social work (as is going to happen in Birmingham and elsewhere) is a fundamentally bad idea. This should serve as a warning to those who think this is a good idea. I have little doubt that if there was a supervision order to the LA then the matter would very quickly have been returned to court. The lack of accountability in this arrangement is frightening.

    2) The Guardian, grandfather and Local Authority were against this poor child returning to the care of her parents in the final hearing. They had the same evidence as the judge and came to a different conclusion. Why is that? What made this judge think she knew better?

    While the judge’s decision may have been the right one at the time (I am not so sure until I see the reasons why the decision went against the wider evidence as put forward by other parties) she went way, way too far the other way to the point of absolute collusion. If a social worker had done that you would have Cameron threatening us with jail.

  15. NO punishment without crime ! BUT This father was a violent criminal and had not just one but a string of convictions for violence plus writing threatening notes, so the child was obviously better off with grandparents (not adopted or anything as drastic as that) .
    That same judge Dame Hogg extended the injunction against Vicky Haigh (who has never hurt anyone) to another 3 years forbidding her from contacting her daughter by phone,skype,email;or letter even though Vicky now trains racehorses in France !
    What a horrible ,horrible woman and thank goodness she retired conveniently 1 week before the trial of the murderous father !

    • Would you have mandated contact even if the little girl said she didn’t want it?

      • Certainly not if she had come to court to say so ! This young girl was not allowed to come to court and her opinion was neither sought by her carers nor asked for by social workers !Too often social workers say children do not want to see their parents when the contrary is the case but they did not even pretend that was the case with Vick’s daughter

      • @ Fosterer5 – yes I would have mandated contact even if Ellie had not wanted it BUT that wouldn’t have entailed simply handing her over to her parents, as was done. It is clear from various photographs now in the public domain that Ellie was able to derive pleasure from her parents. What she needed was effective protection and support to enable her to be brought up safely by her parents. That was always perfectly possible but never provided.

    • A Social Worker

      She “now trains horses in France”… I would suggest that there may be effective indicators about a parent’s suitability to care for a child than if she can train horses.

      • I mentioned that Vicky is an intelligent lady who earns her living in France to emphasise that surely no harm would be done by a phone call or email from “abroad” as opposed to face to face contact as she has never been accused let alone convicted of hurting anybody.She lives peacefully there with her younger daughter safe from the rapacious UK social services.Only the horrible Dame Hogg stops her even from enquiring how her daughter is getting on via a third party……..

    • The mental gymnastics involved in your post are simply astounding. This case is a counter-point to every comment you have left on every family law blog across the internet. Probably one you ought to leave alone.

    • I am frankly shocked (but sadly not entirely surprised) by your continued support for the “rights” of the murdering father and colluding mother, above those of the children. In my view it does the case of other parents you support no good at all.

      Just to be clear, could you please tell me your position on two other matters?

      If the poor little girl in this case had perhaps survived but with life changing brain injuries, would you then have supported “forced” adoption, or do you still believe she would have been better with them as her parents?

      More pointedly, what about the surviving sibling who was used as a pawn in the cover-up of the murder of his sister? Can he be adopted, or are you still claiming he is better with his biological parents?

    • In my view, you’re backing the wrong horse in the Vicky Haigh case. She’s very good with smoke and mirrors and, as you rightly state, she has never physically hurt her daughter(but then neither was she ever accused of doing that). She did assault her ex-partner, Mr Tune, in court and accepted a police cautioned for that offence.

      What she was accused of having done, and was found to have done, was inflict very serious emotional harm on her daughter by publicly accusing her ex-partner, Mr Tune, of having sexually abused their daughter, and coaching her daughter in making false allegations of sexual abuse against her father.

      Those who practise in the Family Court will recognise the all too frequent, and terrifyingly successful, MO of mothers seeking to exclude their ex-partners from their children’s lives.

      Google the case, it takes a while to get beyond Vicky Haigh’s supporters but the other side is out there IF you want to see it. Rebecca Minnock is another, similar case.

      • I think this blog entry http://www.marilynstowe.co.uk/2011/08/23/vicky-haigh-case/ gives a very strong alternative view to “Forced Adoptions” position

      • Is it okay if we stop discussing Vicky’s case? I know that Forced Adoption raised it first, but it always makes me uncomfortable discussing the details of that particular case – it is one of the rare ones where the parent is named, and it isn’t the case that we’re actually talking about. There are real people involved in that one and it feels wrong to discuss it in detail unless it is very relevant to the topic at hand.

  16. Reblogged this on scribblingadvocate and commented:
    A thoughtful commentary

  17. Beyond furnishing the Serious Case Review with the court orders, Hogg and other members of the judiciary refused to cooperate with it, an attitude that was condemned by a former president of the Association of Directors of Children’s Services and the independent chair of the Sutton Safeguarding Board. This refusal is indicative of an arrogant and superior contempt, all to frequently displayed by those in the British Court system (both criminal and family) to those outside of it.

    Dame Hogg was one of the first female judges in the family courts, as a woman, I feel so profoundly disappointed, it is maybe a harsh reminder that women at every level of establishment can collude with abuse. Hogg’s decisions (are there any good ones?), in not just this, but many other cases, demonstrate a considerable bias in favour of abusive men. On the other hand, it is a disturbing picture of far reaching and very harsh judgements on women i.e.; forced caesarian sections, refusal of contact from mothers (without violent histories), I wonder how many other tortured children (fortunate enough not to die), are living with the consequences of this woman’s decision making on a daily basis.

    The poor level of accountability is alarming, very, very alarming. In an era where child abuse and exploitation appear in so many forms, we appear to be riddled with a hierarchy of people who are themselves either child abusers (from Peter Righton to Patrick Rock), or those who collude (wittingly or unwittingly) with it, from the Catholic Church to the Criminal Justice System and beyond……a culture of secrecy for the powerful, whilst surveillance reigns on the less so. Cover up is the added insult to the injury and the judiciary have demonstrated themselves (at least in this case) to be more than capable of this. Retiring a week before the murder trial is deeply cynical, but yet another indicator of superior contempt.

    Grandfather now needs to be supported to get some sense of justice for his granddaughter and her tragically short and unhappy life. Maybe the scope of this inquiry should go beyond the limited format most inquiry’s appear to take these days and begin to assess the enormity of influence child abusers have had upon our culture, services, policies, procedures and our belief systems. We are not getting child-care systems right in the UK, we are getting it very wrong. Bring back Munro…. We need leaders who care and who see beyond the linear and procedural framework our child care system currently operates in.

    • Derrick French

      I am sorry, but with all respect, being bound by a constitutional presumption that a Judge should not discuss her judgment but is constrained to issue it publicly and set out in it the basis of her findings, is not evidence of arrogance. What actually do you want the lady to say?
      The problem at the moment is that until the dust has settled in the criminal proceedings, the judgment is not available. It will be once again and then we can all read it. Maybe then we can form a view as to what expert evidence was put forward as to the suitability of this couple to take back a child who hardly knew them.

      • I seek to differ, a refusal to co-operate with a serious case review is indicative of arrogant contempt. Simply ticking bureaucratic boxes and doing the minimum to meet legal requirements is far from reaching the bar! I think the knowledge that there is no chain of accountability here serves that arrogance, it needs to be challenged and changed.

      • What I would like to see, in addition to the publication of the judgement, are the letters that were apparently sent out, on Mrs. Hogg’s instructions, to the father and to the public bodies involved with the family, since it seems that the contents of these documents were crucial in deterring the taking of future protective action with regard to Ellie. These documents may have been available at the SCR but I think that the wider public should now see them. The Judge’s actions may not have been unique (although I have never come across anything quite like them) but it is important to try to understand what lay behilnd them so that future mistakes of this sort are not made.

      • That all sounds sensible to me. I think it might have to wait until the appeal period ends, given that Butler was very vocal during the verdict that he intended to appeal. I don’t foresee him having a lot of luck in that. The 999 call two hours after the death, faking alarm and distress absolutely sinks him.

        [I’d like all of this published now, but I think the judiciary are being very cautious and not wanting this guy to have an excuse to claim any technicality if he gets an appeal]

  18. I am very intersted in the binary explanation. Paediatricians work in “grey” all the time and balancing pros and cons of decisions/risks of doing or not doing tests etc. I still do not understand how the experts who were called were not able to find that it was 51% more likely (on the balance of probability) to have been an NAI event that lead to the bleed. The paediatrician who was called to look at all the evidnec is an expert in sleep physiology and apnoea- he is not, to my knowledge, a front-line general paedaitrician doing on-calls and looking after cases of suspecte NAI. He is not a Named or Designated Dr. Who looked at the case in its entirety from a medical perspective. His theory on hypoxia from the floppy larynx implies the Geddes hypothesis of hypoxia causing the subdurals and retinal haemorrhages (this is discounted by most paediatricians and has been the subject of various court cases). I do not know the exact location in teh brain as to where the bleeds were- but mr Jayamohan must be aware of the systematic review that had been published in 2010 and correlates the seizures and apnoeas and subdural with a higher probability of abuse than accidenatl trauma.

    The paediatrician is quite right in saying that doctors shouldnt be arrogant and must acknowledge that sometimes we dont know- but that is not to say that the concerns raised by socialservices, his previous viouent outbursts were not to be taken into consideration. Further more the comment tyat moving the child “in an arc” onto the bed, might have simulated shaking-forces, si frankly quite odd- parents move their child in a panic every time they come in with significant illnes- how many of them present encephalopathic ? Just becuase in theory it might be plausible, does not make it likely accidental (when you look at the overall picture, particularly the burn in an immobile child). Furthermore, there is mention that the burn was still evident when she came in encephalopathic- was a burns specialist consulted and asked to follow her up once the burn was brought to the hospital’s attention (the burn having not been brought to anyone’s attention other than the GP) Time to healing in burns can give information about the depth of the burn and thereby the time in contact with the skin (simple accidental contact burns usually heal in approx 2 weeks).

  19. Pingback: “Blood on her hands” | Children In ...

  20. A senior judge in the family court took “unwarranted” extra steps in reuniting a man with a violent and criminal past with his young daughter 11 months before he beat her to death, the author of a serious case review has said.

    Mrs Justice Hogg, who retired just weeks before Ben Butler’s murder trial began at the Old Bailey, has been heavily criticised in the official review of events in the run-up to six-year-old Ellie Butler’s death in 2013.Significant criticism is directed at Hogg, however, whose decision to send Ellie back to her parents was described by Davis as extraordinary.

    She said serious questions had to be asked about Hogg’s decision.

    This has been taken from an article in The Guardian – This woman needs to be held to account. She acted terribly, her ego is massive, she conveniently retires?? Appalling and she needs to explain why she ignored all the advice given to her and why she refused to meet Ellie, who was vehement that she did not want to live with her parents.

  21. Tough and complex case. However, ‘Pendulum Practice’ will help no one. I still find it shocking that following the tragic death of Baby P we saw a huge spike in the numbers of children coming into care which then subsided. Was this purely a coincidence or were people responding to the panic and media outrage? If it was not a coincidence, are we to accept that some children were brought into care unnecessarily?

    When something like this happens there can become a tendency to ‘play it safe’ e.g. future judges thinking- I don’t want this potential stain on my character- lets grant the order.

    We live in a blame society where it is hard for real lessons to be learnt. I know of many social workers who genuinely want lessons to be learnt, but are worried about giving the HCPC enough rope to hang them with.

    • Sadly, that Baby P spike has led to month on month since being the highest recorded – with the exception of a brief period when the Court changed the procedures round with what documents needed to be lodged and what forms, which always leads to a six month dip in the number of proceedings. This year has been far and away the biggest increase.

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