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Ellie Butler drawing together some strands and discussion

This post is a collaboration between myself, Lucy Reed of Pink Tape, Sarah Philimore of Child Protection Resource and Louise Tickle who is a freelance journalist – you have probably seen her pieces on family Justice in the Guardian.

 

You can also read it here

Ellie Butler – drawing together some strands and discussion

 

Several family lawyers have been discussing this case on Twitter, and it was suggested to us that it might be helpful to draw together a document with some important questions and our answers. We won’t necessarily agree on everything, but even our disagreements might help with the debate.

This post is a collaborative post to which a number of people have contributed. We would welcome others responses to the specific questions we’ve set – email info@transparencyproject.org.uk with your replies.

We are Lucy Reed (barrister and author of the Pink Tape website www.pinktape.co.uk)  Sarah Phillimore (barrister and author of the Child Protection Resource website – for a discussion of the principles the courts must apply when trying to find out in family cases how a child has been hurt, see this post), Andrew Pack  (local authority lawyer and author of the Suesspicious Minds website www.suesspiciousminds.com) and Louise Tickle, freelance journalist writing for the Guardian newspaper.

On the evidence that Hogg J heard at the time, what do we think about the finding that the father didn’t cause the shaking injury to Ellie?

Andrew Pack:

When I read the judgment about the shaking injury at the time, it looked to me like a solid and fair analysis of very complicated medical evidence. What causes that sort of head injury in infants is very complex and very controversial, and medical science is moving on all the time. Doctors in this field are talking about it all the time – a decade ago, the medical consensus was that these injuries could NEVER be caused by birth trauma and now we now that birth causes these bleeds on the brain (albeit to a lesser extent) in 50% of births. Reading the Court of Appeal decision in the criminal case, where the conviction was overturned, they highlighted some really unusual aspects about this particular case which would have given more doubt than is usual even in this very controversial field – Hogg J then had added to that the fresh medical evidence about the cyst, and whether that would have been a causing or contributory factor.  I think that the Court had the benefit of the best experts around, arguing both sides, and all of the evidence, and making the finding that the LA had not proved that it was more likely than not that father shook the child was the only safe one to make.  One might argue that the Judge did not give sufficient weight to father’s criminal history of violent behaviour and whether that might have tipped the balance if it was very finely balanced. Reading her analysis, I don’t think that she viewed the evidence as that finely balanced.  She was, on the evidence, confident that father had not done this.

Sarah Phillimore:

I agree with this. I don’t think the Judge can be faulted for how she treated this evidence.

Lucy Reed:

I also agree. The judge heard a large number of the most eminent experts in their respective fields, in some cases several from a single discipline – ophthalmologist, ENT, paediatrician, radiology, neuro-radiology, neuro-surgery…She also heard the evidence of the parents, which she took a particular view on – she thought the father convincing. The law is : if, having heard all the evidence, she was unpersuaded that it was more likely than not that the injuries were inflicted she should determine the infliction not proved – and exonerate the father of those acts.

What do we think about the exoneration speech and letter?

Andrew Pack:

As a matter of law, once the Judge has found that the LA didn’t prove their case about the shaking injury the legal finding is that father did NOT do it. Professionals working with the family would have been told of that legal finding and that the father could not be treated as a risk as a result of the head injury/shaking injury. The Judge clearly felt that father HAD been exonerated and that he had NOT caused the head injury, and her language reflected, I think, her view that the removal of Ellie and his imprisonment had been a miscarriage of justice. From the Serious Case Review, I think you can see that the strength of language that she used made professionals feel that they were being given the message of ‘back off’ and the parents felt that they were bullet-proof. That may have made professionals feel that when they were encountering behaviour that they found concerning they were powerless to act. I think it was a bit too strong at the time but not wildly out of order, and of course with the benefit of hindsight, it was far too strong and could have been couched more carefully – that there were other residual issues about the father that still presented a risk.

Sarah Phillimore:

This is the issue that troubles me. Yes, if there was no evidence that he caused the injuries in 2007 on either the civil or the criminal standard of proof, then as a matter of fact, no one could say that he did. But this was a man with – as I understand it – a clearly documented history of violence, who had served a three year prison term? ( I think – I have not been able to re-read the 2012 judgment as I understand it was removed from publication on line and has not been returned.). I do not know how that history was presented or what weight the Judge put on it. But, in the light of that history, and that the LA were clearly justified in being worried about the initial injuries caused to Ellie when she was a baby, I do not understand why the Judge thought it was appropriate to remove the LA from further oversight of this case and require that a letter setting out Butler’s ‘exoneration’ was sent to other agencies. The Judge found he had NOT hurt Ellie when she was a baby. She did not make findings about his propensity for violence and his criminal history. It may not have been appropriate to do that, particularly if the LA had not relied on these issues to prove their case. BUT. They were clearly part of the background and should, in my view, have given pause for thought before going down any route of widely publicised ‘exoneration’.

This issue also brings into focus some more general concerns about the standard of proof in care proceedings being the ‘balance of probabilities’. I appreciate the arguments that it is not always compatible with the need to protect children, if we insist on proof beyond a reasonable doubt. However, my concerns arise about the subsequent status achieved by a ‘finding of fact’ on the balance of probabilities. The courts are clear that a binary system operates; something is true or it is not. Therefore a finding of fact against a parent can determine the whole course of the proceedings. Parents are required to ‘accept’ the findings with little time for reflection, or risk the LA – and the court – ruling them out entirely as lacking ‘insight’. On serious and life changing matters, I do not feel comfortable with ‘truth’ being established as 51% more likely than not. As the Judge was operating in Butler’s case on the ‘balance of probabilities’ this also should have given some pause for reflection before being keen to ‘exonerate’ him and establish him as an entirely safe and responsible parent.

Lucy Reed:

There is a question as to how the exoneration letter came to be drafted and how it came to be expressed more broadly than the judgment itself. I’ve raised this in my blog post on Pink Tape here. The main issue for me though is the interpretation / response to the exoneration. Ben Butler was exonerated of the physical injuries. The LA elected not to appeal or to argue that he was culpable in any other way. The suggestion in the SCR is that professionals were paralysed by the exoneration. Some time passed before the LA conceded the balance of the threshold, and decided not to pursue findings on any broader threshold risks – from the judgment it is easy to infer that the LA took the reasonable view that to pursue such findings would have served no purpose, partly because the subsequent assessment of the parents was positive and this made it unlikely that the judge would find the threshold crossed on the basis of behaviours that on one view were attributable to the parents being wrongly accused and unlikely (based on the assessment) to endure. The more I consider this point the more I think it would be very illuminating to see the assessment report itself.

I don’t fully understand why, after proceedings had concluded and Ellie returned home, the exoneration should have made professionals feel like the couldn’t / shouldn’t pursue matters of concern. In any event, it appears (based on the SCR) that that subsequent events and information were assessed as not being sufficient to cross the threshold to move into child protection / proceedings, so I’d query what ongoing impact the exoneration had.

Louise Tickle:

I agree with Sarah on this. The psychological impact on on professionals working with Ellie of that letter could not have been anything but one of profound reluctance and fear of stepping in, and being torn to shreds by their own managers and in court if Butler and Gray had protested – which of course they would have done, and I believe in the case of the school raising concerns, did. This was a very senior judge, the LA had fought very hard, and lost. Where, really, were they to go at that point, without fresh evidence of harm reaching a high threshold – and how were they to be able to make assessments given total lack of access, and fear of what would be forthcoming if they were to seek such access?

Were the other issues that could have amounted to threshold properly dealt with, or did the non finding on shaking dominate?

Andrew Pack:

I think this really is the million dollar question. In the first fact finding hearing before Hogg J, the case was all about the head injury, and all of the evidence called and 95% of the documents looked at would have been about that. Having failed to prove that, there was of course still the convictions for violence to consider. Those offences were not against children, so they would not automatically mean that father would have posed a risk to a child, but it was material which needed to be considered in detail in an assessment and could have satisfied threshold.  That, coupled with the child’s presentation around father and the grandparents evidence COULD, have led to a decision that despite the finding on the head injury, Ellie wasn’t going to be moved from grandparents.  I would like to see the threshold document with the findings sought, and to have more clarity about which ones the Judge was specifically asked to make findings on and heard evidence about, and which were simply not put to her as a result of her very clear finding on the head injury and the direction of travel.

Sarah Phillimore:

I agree with this. If this was presented as a ‘single issue’ case – i.e. did he hurt Ellie as a baby, that would seem – with hindsight – to be a mistake. But of course, Judges can only decide the cases before them.

Lucy Reed:

The press coverage at the time focused heavily on the physical injuries but other matters of concern were known about and before the court, but were not the subject of findings. It is arguable that the other matters could have potentially amounted to threshold but the fact and force of the exoneration may have affected decision making about whether it was going to be a good idea to pursue them. The critical question is whether the other matters were presented and pursued and if not why not – and whether any thought was given to reframing threshold after the exoneration. Following the ISW assessment the balance of threshold was crossed. Although we don’t have the threshold document itself it appears from the judgments that the fact of the fathers convictions was not pleaded as a threshold risk in itself. The question of suspected domestic violence / control in the parents relationship was raised and evidence was heard – but the judge made no ruling on this evidence and adjourned off for further assessment. By the time the matter returned to court the LA were not pursuing findings and nobody seems to have asked the judge to record or make findings in respect of this evidence. The first judgment records that evidence was heard but does not record its extent or cogency. It is reasonable to assume that if the evidence was compelling and of high concern this would not have been dropped and would have been the subject of judicial comment or findings. But we don’t actually know.

Was the decision to have Independent Social Workers (ISWs) deal with not just the assessment of whether Ellie should move from her grandparents but the actual social work of the move unusual, and did this make a difference?

Andrew Pack:

The Judge was clearly taking into account that during the earlier hearing, the parents had been substantially criticised by the Local Authority for not accepting that father had injured Ellie and the working relationship was very strained. Having made the finding that father was exonerated, it was put to her, and she agreed, that any assessment by the Council would be ‘doomed to failure’.  That’s strong, but I think it wasn’t unreasonable to ask for the assessment as to whether Ellie should go home to be done by Independent Social Workers. What is much harder to understand is why those ISWs were also charged with doing all of the direct social work with grandparents, Ellie and parents, to prepare Ellie for the move and do the social work visits. The Serious Case Review shows that that agency were not given clear background information and essentially just had the judgment exonerating father – was it clear enough to them that this man had a history of violent offending? Might that have made them more concerned about the visits where they now report that he had been angry and unable to calm down for 10-15 minutes for some of these visits? Or, in the absence of knowing about his convictions for violence, did they assume that this was justifiable frustration about the process from a man who on that judgment had lost his child and been wrongly sent to prison and was still not reunited with his child?  I think that consideration should have been given to a fresh social work team within London Borough of Sutton doing the social work (ISW to do the assessment is fine) or if that wasn’t possible, perhaps a neighbouring authority.  ISW assessment work and direct social work with a family are very different. I think that the Judge got that wrong. At the time, I’d score that decision a 4 out of 10 (it was unusual and a bit strange at the time) and obviously in retrospect it was a major factor to the Court not having the proper evidence about Ellie after the fact finding judgment.

Lucy Reed:

I agree with Andrew. There is a big difference between an independent social work assessment and an independent agency taking over social work responsibility. I’m not sure whether the court intended them to perform this broader role or whether this got mixed up in the process of instruction or at some later stage – perhaps the LA / professionals took the view that they were being ousted for all purposes. It’s unclear whether the ISWs considered themselves to hold this broader responsibility (I’d say doubtful). It’s concerning to learn that over this period the Guardian was off sick and no cover provided. This may well have had a significant impact on the way in which the assessment was carried out and monitored.

Why did grandparents have to pay £70k for legal costs, can anything be done?

Andrew Pack:

The grandparents had parental responsibility by virtue of the Special Guardianship Order, so if these had been care proceedings (the Local Authority wanting to take Ellie away from them) they would have had free legal representation. Because instead this started as a rehearing of a fact finding, and then proceedings primarily regarding a younger sibling not cared for by the grandparents, the grandparents didn’t get legal aid, had to pay their own costs and eventually ran out of money. Grandparents representing themselves, up against two of the best family law Silks around, and a Judge who was viewing Ellie’s case as a miscarriage of justice to be put right – it certainly wasn’t a level playing field. I would strenuously argue for reform of the law here – these grandparents had been caring for Ellie for a long time and doing it well, and if they were to lose her against their will and what their eyes and ears were telling them was right, then they should have had lawyers to fight the case.  A starting point would be for the Ministry of Justice to write the grandfather a cheque for the full amount of his costs – it is bad enough that he lost Ellie, he shouldn’t have lost his life savings too.

Sarah Phillimore:

I agree with this. Ellie had lived with them since she was a very small baby. It is simply wrong in a civilised society that they were left in this position. It wasn’t a level playing field.

Lucy Reed:

This is a problem for grandparents AND parents – even where a parent or other adult has care of a child, public funding is means and merits tested for anything other than the main care proceedings. So, applications to discharge care or placement orders, to appeal or to apply to revoke placement orders or oppose adoption orders, standalone applications about special guardianship or any other private law application – no matter how complex – are means and merits tested. The threshold to be ruled out on means grounds is low so it is easy to be ineligible whilst still being unable to pay.

Judicial accountability and unwillingness to participate in the serious case review (SCR).

Andrew Pack:

I don’t think that the judiciary should routinely participate in Serious Case Reviews. Judicial independence is very important, and the way that SCR’s are conducted, with all parties being very honest about what happened, what could have happened differently, what lessons can be learned, don’t sit entirely comfortably with the judicial role, and the need for them to be independent and to NOT be a part of the professional agencies charged with child protection. However, in a case like this, where the child dies in a placement that the Court have not only sanctioned, but sanctioned in the teeth of opposition from grandparents and social workers, I think that it was unwise for the Judge not to at the very least have spoken with the authors of the Serious Case Review. There needs to be some mechanism for the most exceptional cases of this kind. Likewise, the family judiciary knew of this case 2 years before the verdict – yet the Judge was still given difficult family cases to decide, and they had no press statement or comment. It gives the distinct impression that the judiciary aren’t scrutinising this decision and accepting any part in this tragedy, and that’s a bad impression to give to the Press and public.

Sarah Phillimore:

I agree with this.

Lucy Reed:

On a human level it would be immensely helpful to hear the judge’s view in hindsight, and an explanation of what was going through her mind. But I agree that there are sound constitutional reasons why that should not happen. It’s really important that a judgment is an authoritative and final explanation of a decision or a set of findings. That’s an important protection for adults and children and I think that if alongside a judgment there is a public rumination about what might have been wrong about a judgment then the judgment loses its specialness and the authority of the court is lost. I think it’s right that where a judgment is wrong it can be appealed, and where material new evidence arises a finding can be revisited. That happened in this case when new medical evidence pointed towards a miscarriage of justice against Ben Butler, and of course with hindsight many people are now reappraising the exoneration finding.

For me though the corollary of saying that a judge should not participate in an SCR is that there must be meaningful transparency in terms of the judgments and process. We don’t have that in this case because the judgments have been pulled and the public can’t appraise the judgments or case documents against the SCR. Having seen some of the judgments in this case it seems to me that there is some tension between some of the accounts given and views expressed in the SCR and in media reports and the content of the judgments themselves. I think that constitutionally the public need to have access to this material.

Louise Tickle:

I don’t agree with this. I cannot see why the judiciary should have zero accountability when every other actor in the case has had to answer for their decision making and judgement calls. I think, in response to Lucy’s point, that the authority of the court is only as good as the public’s confidence in it. I do not think public confidence in the judiciary has been increased by this case, but worse, I think it has been even further damaged by the position taken by the President that a judge simply will not enter into the processes of examination as to why she acted in ways that went, in some people’s view, far further than was required, on a standard of proof that can be hardly said to truly exonerate anyone. Particularly anyone with the previous, safe, criminal convictions for violence that Ben Butler had. Overall, I cannot see why any part of our society’s agencies should be above questioning and scrutiny. A child has died. The ‘specialness’ of the judiciary is an irrelevance and an abuse of privilege in this extreme circumstance, if there is something to be learnt by other judges and indeed the rest of us. It is not about demanding heads on plates – it about Hogg’s thought processes and levels of risk aversion and judgement relating to facts and evidence she was appraising that could, if it were to be known, be reflected upon, considered, discussed and learned from. We do not get better understanding of failures by refusing to look at what let up to them. And judges have vast powers. The more power you have, the more accountable you should be when something very terrible goes wrong.

What pieces of information are we still lacking? Should for example suitably anonymised medical reports be in the public domain so press and public can see how complex and difficult the medical evidence is?

Andrew Pack:

I think we need the judgments available to the public and put in one easily accessible place – the Court of Appeal criminal judgment, the fact finding judgment from Hogg J, the second judgment from Hogg J where she decided that Ellie would live with Jennie and  Ben, and very vitally the judgments from King J about Ellie’s sibling after Ellie had died. At the moment, we don’t know whether King J reconsidered Hogg J’s exoneration at all, or whether it proceeded just on the evidence about Ellie’s death. Nor do we know what the outcome was for Ellie’s sibling– of course we shouldn’t have name or details of the sibling’s address, but I think there’s public interest in whether the child was placed with the grandparents and if not why that was decided. I think that unusually in this case, there is justification for the entire court bundle to be available to be seen. Obviously one has to be careful about any photographs and we don’t want prurient rubber-necking, but there is such public unhappiness about this decision that seeing the medical reports would, I think be justified.

Sarah Phillimore:

I agree with this.

Lucy Reed:

I agree also. I would in particular like to see skeleton arguments or written opening / submissions presented to the court at the rehearing, threshold documents filed at particular times, position statements and orders.

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About suesspiciousminds

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

22 responses

  1. This was a clear case where a supervision order could have been made since the father had a criminal record of violence .That might have saved a child’s life………..
    Too often judges decide on probability 51%.Such cases where shaking is suspected, tend to be grey rather than stark black or white.A compromise was an obvious possibility. When dealing with a violent criminal the least Dame Hogg could do was to arrange supervision;,but alas social workers and family court judges still tend to disregard the dangers from violent criminals and concentrate on the “much harder to refute” risks of future emotional abuse from imperfect but comparitively harmless parents……….

  2. I am not familiar with any of the details of this case (but intend to read it all as it seems to raise so many relevant issues) but it occurs to me that there are entire professions of well trained and experienced practitioners who spend their entire careers undertaking evidenced based risk assessments of individuals who have a history of violent offending i.e. forensic Psychologists and forensic Psychiatrists.

    Was the father assessed by one of the above experts and if so what was the finding? If not, why not?

    Again, this seems to raise for me the fact that in complex cases where there are specific issues (such as a history of violent offending, history of mental health difficulties which is suspected or diagnosed, documented substance misuse, evidence in the child’s presentation of possible underlying difficulties that may be related to something having happened to them) that there must be an assessment of the specific issue by someone who is trained to undertake such an assessment. I have probably met about 3 people in a career of nearly 20 years (in a variety of NHS settings and undertaking Care Proceedings assessments) who put their hands up to injuring a child/their partner/family member – and this includes people with convictions who have served sentences for violent offences. Someone who, for whatever reason, injures and abuses children, is not, in my experience, likely to be open about this and they may have a very complex set of mental processes they use to hold this knowledge about themselves at bay – such as seeing themselves as the victim rather than a potential abuser. They may be very good at convincing themselves and this may also mean they are very good at convincing others, and this may be a deliberate manipulation or it may be something else related to a mental health issue which involves the person having a distorted view of themselves and others which ‘justifies’ (to them) their actions.

    As I said, I don’t know the case at all, and the above is speculation, but I still would be interested to know whether a forensic mental health professional got to undertake a risk assessment in the case and if not why not?

    • As far as I can tell from the judgments, the future risk of Mr Butler, and the ability of Ms Grey to act protectively were assessed after the first Judgment exonerating him from the shaking injury was carried out by the Independent Social Work agency, who did not get a full set of papers but effectively just the judgment.

  3. Reblogged this on | truthaholics and commented:
    This case is another damning indictment of the present family law system which too often still operates on the basis of over-zealous opinion evidence instead of objective decision-making based on a properly consensual and accurate factual basis. This tragedy sounds another siren call for root and branch reform.

  4. Stella aka Toni Macleod

    I’m sorry but for once I actually disagree with one of your posts in its entirety I think you’ve tried to grasp and micromanage it from completely the wrong angle

    I wholeheartedly think you’ve wasted the talents of 4 exceptional minds and jumped on the band wagon for a witch hunt of the wrong person

    Justice butler is human she’s not perfect and she took what was no doubt a greatly difficult decision and put her belief in the system the evidence before her and most importantly the humanity of the parents that yes admittedly turned out to be wrong but not a single person can say they haven’t at one time had the wool pulled over their eyes the la do it daily

    It happens daily up and down the land in courts meetings and general day to day life people naturally manipulate others to get their own way

    I find it horrifying to think that the essence of some of the comments are “oh he had a violent criminal record he should have been known to be a danger around kids and never allowed” what utter bloody tosh ! And a disgrace to your intelligence you would think that way

    It’s not a hidden fact I personally have a colourful historical criminal record combined of violent offences which on paper reads horrendously and rightly so until you read the small print that it was to protect my unborn baby before I’d even had children or that not a single fight in my life have I started Iv only ever defended myself and the other persons have come off worse because again Iv never been faced with a fair fight one on one does that to mean I’m a risk of murdering my children or others no not in the slightest and to imply such is absurd and really is an idiotic view

    The judge isn’t to blame for the death of this child the system isn’t to blame either the only people that should be crucified for this heartbreaking tragedy are the parents for the murder of not just a child but most disturbingly their own child

    They’ve not only taken a life but they’ve ruined the future for countless other lives by putting the fear of God into every other judge that is tempted to give families a chance to be reunited

    Just how many judges read that update of how things turned out and reconsidered their temptation to give the families before them a chance and the benefit of the doubt for fear of being the next justice butler scapegoat

    The system is not perfect it makes the wrong decisions on a daily basis HOWEVER 95% of them wrong decisions do not end in the death of a child but 75% of those wrong decisions do tear families apart whom should have been given that chance to be together but aren’t because judges are too scared of being persecuted for making wrong decisions but it’s a plain and simple fact that 100% of kids that get involved in proceedings are damaged for life from the outcome regardless whether their placed in care removed and given back to their families or are left with their families but put under the strain of being at risk of removal

    It’s unthinkable the suffering that child went through prior to dying but it’s happened it’s not going to change the fact the child is dead however what is unforgivable is that now a judges whole career is being speculated on for the actions of some scummy c**ts

    It’s no secret I’m not a fan of judges legals therapists social workers cafcass or any other person that works in child protection I find them to quick to judge negatively and take the word of a complete stranger in a piece of paper than actually getting to know a family and making decisions for themselves

    However

    Is it any wonder they jump on the side of caution because of actions and cases like this you may be misunderstanding that parents are holding this as a “ha the judge was wrong” case were not were hiding from the shame of this case more so than the judge who made the decision because it’s going to force the hand of far too many more judges to follow their knee jerk gut instinct of erring on the side of caution and removing without allowing the families a chance

    Perhaps if the majority of crystal ball prediction removals of future emotional harm cases where NO actual harm be that neglect sexual or physical has occurred previously or on a sibling and actual care wasn’t a concern were removed off la books then that would free up time space and resources for care cases to actually protect vulnerable children rather than predicting the future to enable them to actually monitor and work with families to put support in to safeguard the children at risk far to often all we hear is …..
    Lack of funding
    Lack of resources
    Lack of time
    Over worked
    Over loaded

    It’s not good enough it’s really not and that is exactly why we are now faced with a system that is consistently failing

    Does the CA89 S31 not state that the child must be either beyond parental control or not being given the expected / required level of care ???

    If that existing law was actually extended and abided by in cases then we wouldn’t have a system not fit for purpose set to burst and failing on every level and have a manageable level to deal with

    Had the system not been snowed under more supervision orders could be imposed to support families like this one so monitoring could take place that would have prevented this happening but far to often the la either loose or win but regardless the second the final hearing ends they loose all interest in their duties

    Stella xx

    • Hi Stella

      I think all of us were of the view that Mrs Justice Hogg had no choice on the evidence that she heard to decide that Mr Butler had not shaken Ellie. (and as he wasn’t re-convicted of that, nobody has yet proved that he did). Most of us feel, however, that AFTER that, some of the historical background which didn’t automatically mean that Ben Butler couldn’t live with a child but were worthy of considered analysis, got rather lost in the desire to correct a miscarriage of justice.

      Absolutely not saying that because Ben Butler had convictions that he could never be with a child – but they were relevant to at least be looked at very seriously.

      I personally think that the Press attacks on Mrs Justice Hogg were unfair and wrong – my initial piece was all about how hard it is to make these decisions and get them right, and that trying to look back after you know an awful outcome isn’t fair.

      There are two people responsible for Ellie’s death – Ben and Jennie.

      • Stella aka Toni Macleod

        Unfortunately as always evidence is open to interpretation not only that but no matter how hard you try and reinact any event post dating the occurrence it’s never going to be 100% fail safe just goes to show that no matter how many “experts” you throw into the mix just because they have opinions and qualifications coming out their ears it doesn’t make them right

        My gran always used to say wish in one hand and sh*t in the other see which comes first because you never can guarantee the outcome anything until it’s given chance to play out

        I really don’t envy judges in the slightest coz no matter their decision their always going to be deemed wrong by 2 out of the 4 parties every single hearing so they are essentially the only participants in every single court hearing that are deemed to be wrong every occasion

        Sad really but there again I don’t feel the slightest bit of sympathy for them either despite many going in to make a difference with good intentions all to soon they become jaded and out of touch with reality all to quickly 😦

        Stella X

      • I absolutely agree. We can’t be 100% right that we remove every child who would otherwise get hurt, and we can’t be 100% right that we keep at home every child who has parents who won’t hurt them despite worrying history. And we need to be honest about that. We can get closer to those numbers, but we won’t get it right every time, and every time we don’t, it is a tragedy either way. The ones like Ellie are the more visible and shocking tragedies, but the ones where children who could have stayed at home don’t are still tragedies but are less visible.

        The main thing here is not to knee-jerk into Judges feeling that if they take a calculated risk and are wrong that the Press will be sharpening their knives. Because it is very rare in care proceedings for there to be no risk at all – it is usually a question of whether a Judge thinks that the risks are manageable at home.

  5. No where have I commented that ‘he had a criminal record, he should never have been allowed around children’.

    My actual comment was that someone who had apparently served three years in prison for a violent offence ought to have been subjected to a proper risk assessment, not simply ‘exonerated’ because it could not be proved that he hurt his daughter when she was a baby.

    • Stella aka Toni Macleod

      I never said you did I said the “essence” of “some” comments 😉

      Although in regards to him having spent 3 years in prison therefore needed to assessed to see if he posed a risk to the child …… Are you saying that the criminal justice system and thereafter prison sentences and offender management programmes like probation don’t work to rehabilitate offenders ???

      Interesting I can’t comment Iv never received a custodial sentence and don’t have much experience with criminal law or rehabilitation programmes but am aware many countries have scrapped the traditional prisons and now work towards community based rehabilitation programmes with a great success rating resulting in the closure of 70% of their prisons

      It’s a vast discrimative of violent offenders though in my opinion that they require assessing before being free to enjoy their family especially in light of Teresa Mays ethos that nonces should be allowed to adopt …… My distaste for that vile women’s idiotic ideas aside and the fact that nonces never can be rehabilitated against their sexual preferences no more than a gay or transgender person can just switch off their sexual preferences

      But

      This again would fall into the crystal ball prediction future risk of harm category surely if they haven’t actually harmed or been accused of harming children that currently swamps the child protection proceedings and makes actual children in need vulnerable due to overloaded case loads meaning they can’t be monitored

      Surely the focus should be on actually abused children not ones that may be in the future

      Not only that but risk assessments etc are open to interpretation of not only the reader but the writer it’s nothing more than someone’s opinion

      For example what would be a typical every day occurrence for one person would maybe never happen to another from perhaps a different area social circle race class culture etc does that mean sharing the bath to save bath water and time for siblings at bath time would be considered sexually inappropriate lack of boundaries safety concerns from bad parent to child ratio and neglect for failure to provide clean water for each child to one person and class yet an upper class parent sending their child to boarding school at 3 year old and seeing them perhaps once a year for a matter of hours wouldn’t be considered lack of emotional warmth neglect and abandonment to another ????

      Every single person case situation and event not to mention family is different to tar every person with the same brush just because they tick a similar box is plain wrong in my book

      Just to enforce that did the judges son the other year get stopped from having a family because he got caught possessing cocaine ? Yet someone from a lower parentage would be branded an addict for life for the same thing ….

      Stella xx

  6. It should be only a short step to amend LASOA 2012 to give carers – such as Ellei’s grand-parents – legal aid; and it would have helped to level the fairness field on which Ellie’s case was dealt with.

    Comment on standard of proof in children cases to follow.

  7. I am so reminded of the toxic dynamic between Dr Ruby Schwartz and the social work department in the Victoria Climbie case; and the way that misguided ‘medical opinion’ was given paramount importance by Haringey in the Baby P decisions. The existence or otherwise of an injury does not alone prove risk. Childrens’ services in these and in Ellie’s case failed to produce the kind of piece-by-piece painstaking psycho-social assessment of risk of harm that is necessary to meet their own threshhold criteria. I can see how they failed to do it, and how they justify failing to do it, but I still feel that fundamentally, that is their job and no-one else’s.

    • I would agree with this point.

      A decent risk assessment should include a whole variety of factors all of which are carefully considered, evidenced and balanced against each other and I am slightly mystified as to why another commentator (Stella) seems to think that professionals undertaking ‘risk assessments’ on those with previous history of violent offending would have an agenda whereby they would seek to ‘brand for life’ someone based on their past history.

      If that were all risk assessments ever did, there would be no point in doing them, as one occasion of violent offending would be enough to condemn someone forever. Doesn’t take much training, expertise or anything else to do that, and I can’t imagine many professionals working in prisons, probation, forensic mental health etc would be very motivated to go to work each day if they had no belief in the capacity of people to change.

      Surely each situation needs to be carefully assessed on its own merits – there will be people who have a ‘history’ of ‘violence’ which maybe occurred in their teenage years and maybe was related to tough stuff happening in their own lives and which has never reoccurred and has little relevance to how they cope in later life (with children, partners, job etc). But there will be people for whom a history of violent offending is relevant to how they cope with many aspects of life (not coping with frustration well for example) and it may be very relevant to how they parent.

      I do see Stella’s point as to the way in which information may get misused or misrepresented or seen differently due to race/class/culture and I do agree that is a risk – but providing a decent and thorough psycho-social risk assessment should reduce the risk of sloppy, biased, badly evidenced ‘opinion’ getting used inappropriately, surely?

  8. Shaun O'Connell

    My main concern with the serious case review, mirrored in a number of other cases, is the use of behaviours to control and effectively bully the bodies deemed to protect and/ or support the children. I am aware of a number of groups sharing tactics to evade being properly assesssed and control what the worker gets to see.

    Transparent social work would be fine, but having seen evidence of legal depts controlling their workers input and of social workers who knowingly mis-report, can understand why some parents dont trust the system.

    However this case is unusual and just shows that we all err in this world, we can only try to do our best. Hindsight is a wonderful thing. As far as Supervision orders are concerned they are worthless, given the lack of powers.

    A controlling parent can use tactics to avoid being assessed, and to ensure the LA only get to see what they want them to see. After all under a supervision order the LA do not have PR, the role is to advise befriend and guide the child……and if the parent refuses to engage with the supervision order it is a worthless piece of paper. If a public law case ends on a supervision order and refuses to engage then that is the end of it without PR, stronger evidence would be needed to freshly argue for a section 37/ ICO, or a child assessment order………a parent can agree to co-operate in Court then walk away after the event ……if the child on a superficial basis appears to be ok then that is the end of it…..

  9. The main focus should not be on whether Butler abused her in the past. Of course any grave injustice suffered by the parents would be of serious concern – but since the Children Act 1989, it is the best interests of the child that must be paramount in decision-making and cannot be lost sight of.

    Ellie had been living with her grandparents for most of her life and had seen her parents rarely. Everything we know about attachment tells us that to remove her swiftly from them to parents whose parenting abilities might be at the very least shaky, would be unwise and damaging. Any change in her care would require a complete focus her needs, huge sensitivity and possibly some imaginative solutions to practical difficulties. The way in which her return was organised and achieved, and its relationship to the judgement, is crucially important if we are to learn from what has happened.

    We cannot see the judgement, and so cannot see how Ellie’s best interests were decided. But we can see from the outcome of the work set up as a result of the judgement that things went badly wrong. Putting the child’s needs first and making that central to decision-making provides clarity – it’s not about past injustices – it’s about a child’s future and her best interests.

    • It wasn’t about past injustices but it was about risk, those risks should inform what is in a child’s best interests, and form part of an assessment to determine their future.

      • I understand that this discussion is about trying to decide whether or not a child has been hurt, but the wider context of Ellie’s development and circumstances and how it informed the decision to return her to her parents, taken together with an assessment of risk, is important to know.

        Again, if we are to learn from this, it is unfortunate to say the least that we cannot see the apparently lengthy judgement, and understand what weight was given to other considerations arising from the assessment of Ellie’s best interests, particularly her attachment to her grandparents, especially in the light of the extent and impact of Mrs Justice Hogg’s exoneration of Butler.

      • Having seen it, very little indeed. By the time the Judge came to decide whether Ellie should go back to mother, the positive assessment from the ISW’s was in, the LA had decided not to pursue the other threshold allegations against Ben Butler (and to be fair to them, the Judge immediately said that if they had pursued those allegations she wouldn’t have found them) and the grandfather had dropped out of opposing the move (again quite probably because he could see that the writing was on the wall). Perhaps seeing that ISW assessment might help in seeing how the pros and cons of Ellie moving were balanced up, but there’s very little pros and cons in the judgment – it was just viewed as being an unequivocally good thing to do – hence those remarks quoted by the Press about how much joy it brought to the Judge to do it.

      • I agree, relationships and attachments re part of that assessment, and Ellie was scared of her dad.

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