suesspiciousminds

Surrogacy and exploitation and Facebook

Posted on July 1, 2016 by suesspiciousminds

This is a grubby and desperately sad case, which indicates that there urgently needs to be some proper system of regulation over commercial surrogacy (which ought not to exist at all in this country but is doing so under the guise of ‘reasonable expenses’) This case highlights how easily someone very vulnerable, whose financial circumstances were so stretched that she couldn’t afford phone top-ups might be persuaded by what in that context is a huge amount of money. (Here £9,000. If you are on benefits, £9,000 is a LOT of money)

Z (Surrogacy agreements : Child Arrangement Orders) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/34.html

Here a baby boy Z, was born as a result of a surrogacy arrangement in 2015. Z’s mother X, agreed to be a surrogate for a same-sex couple A and B. The child was the biological child of A, but the eggs were provided through an anonymous egg donor. So X was the vessel for carrying the baby, but was not a biological or genetic mother to the baby.

The surrogacy arrangement was set up through a Facebook Group.

The applicants, who are a same sex couple, were introduced to X through a Facebook surrogacy site, which was run or administered by W and others, to provide a forum for the introduction of potential surrogates and commissioning parents. Although it is the applicants’ evidence was they were not members of the forum it was through that social media site that they were introduced to X. There is no screening of either surrogate or commissioning parents and no support available other than support from others involved with the forum. This court has heard, in this case and in others, that the surrogates were paid sums of money for their expenses at what was considered to be the “going rate”; which apparently varied from about £8,000 to £15,000. This unregulated form of surrogacy means that there are on the one side vulnerable surrogates, and on the other commissioning parents who are legally unprotected from unpredictable outcomes.

A and B had had Parental Orders granted in relation to twins, born in another surrogacy arrangement through a woman V. Within 48 hours of the orders, they began making arrangements for another child through surrogacy.

Here are some of the things that the Judge said about V and the way that A and B had behaved towards her

The applicants are a same sex couple who are in a civil partnership; they are both professionals, A an academic and B works for a charity as an advisor. Socially and economically they are in a much more secure position than X and much more affluent, although by no means wealthy. They are the parents of twin boys born in June 2013 by virtue of parental orders made in January 2014 by the Family Court. Within 48 hours of those orders being granted B started to make contact online to find another surrogate.
The twins are the biological children of A and a known egg donor. They were conceived as a result of IVF treatment in the same clinic in Cyprus later used for the conception of Z. The twins were carried by V, a gestational surrogate. This first surrogacy agreement and the circumstances surrounding it are relevant as the applicants’ conduct was repeated in their agreement with X. Of particular note was their attitude towards the surrogate V which was mirrored later in their attitude towards X. The applicants ‘met’ V online or on Facebook in late September 2011, they knew very little about V relying instead on the views of L who was also involved in the surrogacy forum; what they did know was that V was in the process of what they called “matching” with another couple of commissioning parents but that that agreement was breaking down. There is no evidence before me that the reason for the breakdown was explored or that the applicants were concerned about it.
Once introduced the applicants and V had become further acquainted online and arranged to meet in person. As was clear from the oral evidence of the applicants to this court the purpose and focus of that, their first meeting, was to sign the surrogacy agreement. A told the court in his oral evidence that the three had met in a services area in a “restaurant off the motorway in the West Midlands” and, that at the meeting which lasted 3-4 hours, they had discussed “the agreement and who we were”. They had signed an agreement at that meeting and that had constituted “matching”.
It was abundantly clear from their evidence that A and B knew very little at all about V, her circumstances or her motivation for acting as their surrogate when they signed the agreement with her. L, who gave evidence before me, knew that V was in some financial difficulty because her phone had been cut off prior to the meeting or “match”. Money and payments were an issue between the applicants and V during the pregnancy and after it; as could be seen from electronic messages exchanged between them. L said, in her written statement, that V had “money trouble” throughout the pregnancy. It was known that V had separated from her partner at the time of the “match” so it would be fair to assume that she was, at the very least, more emotionally vulnerable than she otherwise might have been but neither of the applicants appear to have given this any thought and were firmly focussed on what she would be doing for them.
In his oral evidence B, who told me that he had found V’s behaviour to be too demanding just after the twins’ birth, dismissed her need for his support at the time unsympathetically describing it as being “because of her hormones”. B was unable to demonstrate any understanding or empathy for a woman who had just given birth to twins, was in hospital alone and unsupported there or at home until he was pressed to do so. L was similarly dismissive and also gave a harsh unsympathetic description of V; who was described in a similar vein by all three witnesses; L, A and B.
V was characterised by all three of them as “volatile” without any thought being given as to why she might be in an emotional, still less in a vulnerable, state. When considering their evidence about V in its totality I found the applicants to be dismissive of the considerable positive contribution to their lives she had made, at considerable physical risk to herself. She was unwell for the last three months of the pregnancy and required someone to live in at the end of the pregnancy to look after her own children. In their descriptions of V as a person they were largely negative and appeared almost wholly uninterested in her, rather, it seems, they saw her primarily as a service provider to whom they had paid £12,500.
The applicants complained about V demanding too much attention from them after the twins were born and handed over to them. B said that she kept texting him when she and the twins were still in hospital after the birth, and that she kept wanting him to spend time with her. Both he and A saw this as unreasonable as they wanted to be with the twins who had to remain in hospital for some time for treatment. The applicants remained on speaking terms until after the parental orders were granted and it was part of the evidence before the court when the parental orders were made that they had an agreement with V that she would remain involved for the twins’ sake. By the time of this hearing they had “fallen out with her entirely“. The terminating event was, they claim, because she had failed properly to acknowledge the children’s first birthday. I find this evidence inherently contradictory as they also claimed they had found it necessary to limit V’s involvement as they found her to be both intrusive and demanding.

When the baby was born, X did not want to hand the child over to A and B (and you might get a sense of why later on) and that then led to private law proceedings to determine where the child should live.

The case was decided by Ms Justice Russell, who is very experienced with surrogacy and HFEA cases.

Firstly, and significantly, X was cognitively assessed and was found to have difficulties in understanding things and had to be helped during the hearing.

X has been assessed by Dr Willemsen as having learning difficulties, which appeared to him to be congenital. Until she was seen by him and his report prepared, it would seem that neither her family nor her partner were aware of her difficulties although she had been perceived as different from her siblings and her peers at school, and her partner told me that while he was aware she was vulnerable he did not know just how vulnerable. X is aware of what she sees as her own short-comings and, as described by Dr Willemsen, will want to please people to hide her shame and embarrassment. X has difficulty in speaking up as observed by the guardian and confirmed by Dr Willemsen. Dr Willemsen told the court in his report that on growing up she has become more aware of her difficulties and this has been accompanied by self-doubt and insecurity; to deal with this she has sought isolation and did so from her partner during the pregnancy. Dr Willemsen, who gave oral evidence, reported that X “is a vulnerable young woman who is susceptible to influence and pressure from others. She gave a few examples where she felt she had not been able to speak out loud about her thoughts and feelings to the couple who asked her to be a surrogate.”
Dr Willemsen emphasised that despite her difficulties she had been able to concentrate during their meetings (with half hour breaks) and that what was not affected was her “ability to be emotionally available. She was able to relay her frustrations, as well has her love for [her son with P] and [Z]. She was able to speak as openly as she could about her life and the course of events she had found herself in.”

If surrogacy were properly regulated, it is hard to believe that a person such as X could have been approved as someone who really knew what she was getting into or the emotional turmoil it might cause her. It was not that her problems were so subtle that only an expert assessment could reveal them :-

It is striking how the applicants did not seem able to see how vulnerable X was even at this stage. The guardian was almost immediately struck by it and on her behalf her counsel pointed out how many other people have commented on her vulnerability, over and above Dr Willemsen and the intermediary. The guardian said even on their first phone call she sensed that X was lacking in confidence and that by the time she had met X and spoken to her she believed she had learning difficulties. Everyone that the guardian had spoken to in August and September when she visited the area where X lives, to assess X’s support network, all commented on her vulnerability: they included the mid-wife; P’s mother who described the X as ‘naïve and gullible‘; P, himself, spoke about “how vulnerable [X] is”; X’s step-father described her as “gullible”; her own sister described X as “very naïve”; a family friend described X as lacking confidence.

Do we as a society, want someone who is vulnerable, naïve and gullible, being paid money to have a baby on behalf of someone she barely knows? Let’s look at the circumstances in which the surrogacy agreement was signed

Although X had agreed to act as a gestational or “host” surrogate for the applicants, the circumstances in which agreement was reached and signed by X is a matter of some concern and one that I shall return to. The agreement was one found on-line and based on overseas commercial surrogacy agreements from the USA. The provisions and regulation of commercial surrogacy in the USA do not, in any real sense or detail, mirror the supposedly altruistic and non-commercial surrogacy in the United Kingdom. It was signed by X at a fast-food outlet at or near a railway station after a brief face to face meeting lasting less than two hours. X was accompanied by her young son and a young relative, no more than eighteen years old. X’s partner did not support the surrogacy although he did not object to it; as he later told me, he did not believe that it was for him to tell X what to do with her body.

By the time of the hearing, in considering whether a Parental Order could be made, the Judge had to look at whether X WAS consenting (she was not) and whether if she was consenting that she was doing so on an informed basis (she was not)

Legal framework

The HFEA s56 (6) provides that a parental order can be made if the court is satisfied that the woman who carried the child (X) has freely, and with full understanding of what was involved, agreed unconditionally to the making of the order. I have to say that, in this case, even if X had given her consent I would not be satisfied that she had done so with a full understanding of what was involved. X does not consent freely or unconditionally so neither limb of s54 (6) has been met and there is no question of a parental order ever being made.

Looking at the pregnancy, it seemed that initially, there was a wave of enthusiasm from both sides about the arrangements

From the first few days the messages on Facebook, as described by Dr Willemsen, provide an illustration of the faux-intimacy that developed between the applicants and X. As he said “fairly soon an amicable, almost euphoric, atmosphere develops between people who hardly know each other. There is a shared excitement based, probably, on two very different realities. It is easy to read a great deal into Facebook (and email) messages.” It was his view, and one I share, that X was unable to put forward her opinions, just to say that she was “totally fine” when the applicants message that they are now “matched” and “totally fine” with an agreement that she had signed, although it is clear that she could not read or understand the contract she had signed. So little were they concerned about any protection for X’s position, moreover, that the applicants never even bothered to send her a signed copy. The applicants’ sole focus was on signing an agreement. There was little, if any, evidence in their messages of interest in X herself, just as there had been little interest in V.

But then look at how things soured – and squirm as you read the attitude of A and B towards the woman who was carrying a child for them and her financial circumstances.

The level of compensation or expenses which the applicants were willing to offer was, at £9,000, at the low end of the scale that is prevalent on the online websites and forums. From evidence I heard, and from the emails and electronic messages provided to the court, it would seem that this was the figure suggested to the applicants by W before it was suggested to X. In his oral evidence B (who was responsible for most of the communication) said that he assumed X was on benefits but admitted he was not sure, did not appear interested either way and certainly took no steps to find out. This presumption would seem to indicate that he expected financially vulnerable or impoverished women to be more likely to be putting themselves forward for surrogacy.
In her messages X often referred to having problems using the phone and/or the internet because she had no credit, which should have revealed something of her straitened financial circumstances and economic vulnerability but this was not a matter ever taken up by the applicants. Nor is there any evidence that they considered, at any stage, whether a need for money might affect her ability to enter freely into any agreement. As commissioning parents entering into an agreement which can and does compromise the health of the surrogate they owed her a basic duty of care and did not carry out that duty or signal that they considered they had a responsibility for her well-being other than as a healthy surrogate for their off-spring.
The applicants did not consider with X, or discuss with her, what she knew or understood about her rights or legal status in respect of any child or their legal rights and status. In his oral evidence B said he assumed she would know about such things from the Facebook forum. There is no evidence before this court that they had touched on the legal and ethical considerations that arise in surrogacy at all. They had not informed themselves of what professional support may be available to assist in successful surrogacy arrangements such as implications counselling; indeed when giving his oral evidence A did not know what it was. The sums offered, by way of compensation, for “contingencies,” such as £1,000 for a hysterectomy, were wholly inadequate and can only be taken as evidence of the low value that they placed on the physical and emotional well-being of the woman who acted as their surrogate. The language used by the applicants was unequivocally the language of the market-place; “the absolute maximum we could offer for each potentially happening would be £1000″. Their approach to X was, at the very least, potentially exploitative and they did little or nothing to ameliorate it

Neither applicant, in his evidence, was able to give more than a perfunctory account of their meeting with X in March 2014 or to recall anything of what she was like as a person. The meeting in the fast-fast-food outlet, near to the railway station they had all travelled to, was very brief. There were three children present, the twins and X’s little boy and a young man not much more than a child himself, who was X’s 18 year old nephew, and who acted as a witness. From their own evidence it was clear that the applicants discussed only those aspects of the agreement about which they were concerned. X did not, could not, read or properly understand the agreement and such was their self-absorption that neither applicant noticed, and in any case they did not see fit to go through the agreement with her to reassure X, or even themselves, that she understood it. Despite promising to send her a signed copy they only emailed the “agreement” to her several months later leaving her to try to read it on her phone – she does not have a computer. It is inexplicable how the applicants could have ever considered this meeting as an acceptable way to “get to know” the woman who would carry their children and consider that they had, even in the loosest sense, “matched”.

Remember the twins commissioned from V ? And V being cut out of the twins life afterwards? Well, as V and X had both been members of the same facebook group, they were in communication with each other.

In planning the trip to Cyprus the applicants were concerned with their own convenience, such as A going instead of B, who had had the bulk of the contact with X. B accepted in his oral evidence that they did not discuss between themselves or consider at all how X might experience the trip or how to make it comfortable for her. In his evidence A came across as seeming to believe that X should have been grateful for the trip, which, after all, they were financing. Their behaviour towards her was crass; they did not know that she had never been abroad before because they didn’t ask. They took no steps to ensure that she was comfortable or to find out from her what they could do to make her feel supported, and, above all appreciated.
The trip was a very unpleasant one for X. In his evidence A spoke only of the symbolism for him of being present during transfer of the embryos and was either unwilling or unable to recognize how lonely or frightening the trip was for X. He came across as emotionally unavailable and entirely self-regarding.
X was effectively excluded from discussions at the clinic; certainly she did not, on anyone’s account, actively participate in any conversation with the consultant in the clinic. It is understandable that X felt intimidated by A and his suggestion that he had helped her by holding her hand while the embryos were put inside her body is an example of the crass behaviour to which I have already referred. X, naturally, felt nervous throughout the trip and was not at ease with A. The food was strange and unpalatable to her and she felt even more isolated because she did not have credit on her phone. Why A did not see to it that she was able to contact her family and top up her phone is incomprehensible. To repeat what Dr Willemsen said, as fantasy met medical reality she felt used and deeply uncomfortable about the arrangement but she could not find a way of expressing her feelings because she was concerned that she might upset and displease the couple. She found herself caught in a conflict; in the words of Dr Willemsen “between maintaining the fantasy and facing up to reality. She must have felt very alone at times.”
The procedure in Cyprus had a huge impact on X. She had never wanted to carry two embryos and later told W that she did not say anything to the applicants as she did not want to let them down. She was both scared and anxious about it but believed the applicants when they told her that “probably only one would work.” X’s relationship with the applicants deteriorated as the reality of the uncomfortable and intrusive IVF procedure and the pregnancy took hold and she began, increasingly, to see herself as being used. Her reaction at the time has been graphically described by Dr Willemsen; as her emotional state and responses are essentially subjective I accept his evidence, and, furthermore I consider that the way that X responded to her treatment by A and B was entirely predictable. The fact that her own difficulties made her more vulnerable to suggestion and pressure being put on her does not in any way detract from her reaction, but it made it more difficult for her to stand up to the applicants and tell them that she no longer wanted to proceed. She told Dr Willemsen that she had had doubts before the trip but her experience while she was there intensified her feelings of doubt and uncertainty and she felt used.
It was from then that she had started to look for a way out of the agreement. It is clear from the messages that she sent in late October 2014 that she felt worried about having twins “how scairy twins lol xx” and … “my partners like its gunna damage your body blah blah…” to which L, who she was in touch with online, replied “no it wont [sic]”; a response, which while might have been meant as reassuring, was patently untrue. The applicants had not arranged life insurance as agreed despite the agreement stipulating it would be arranged before pregnancy and X became so worried, that this issue was revisited 4 days later, when, in early November 2014, W emailed the applicants about arranging a scan for X and X messaged A “I would like to get insurance starting today please, as it should have been done befor we [sic]got pregnant xx”.
Then in mid-November V was told by L that X was the next surrogate for the applicants. When A became aware of this two days later he sent a message to W about V saying “she can turn really nasty” A sent a message to X telling her “to try not to get stressed and ignore nasty msgs we had such good news today with the heartbeats lets focus on the future”. He clearly had not thought about the effect that V might have on X when she would come to realise that they had deliberately withheld information from her about the poor relationship that had developed between V and the applicants during their “journey”. His messages are further evidence that the applicants had sought to ensure that V did not find out about the second pregnancy to stop her from putting any surrogate off entering into a surrogacy agreement with them, not, as they said in their evidence, to avoid confrontation with V.
Over the next week in November X received several messages from V in which she complained that the applicants had not paid her fairly; that she had been ill during and after pregnancy with the twins; and that they had treated her badly. Unsurprisingly this increased the fears X already had about her agreement with the applicants. The standard response from the applicants and from L was to minimize the concerns by repeatedly blaming V and saying, amongst other similar epithets, that she was “bonkers”. A then sent X a message saying ‘its sad but I’m reconciled now to having no relationship’ with V which, far from reassuring her must have sent the unspoken message to X that she, too, could be cut out of any child’s life in the future.
In their oral evidence both applicants showed limited if any real understanding of the various factors which had undermined X’s confidence in the agreement and led her to consider a termination. Instead I was left with the clear impression that they seemed to expect her to be grateful for acting as their surrogate rather than the other way around. From the messages filed in the court bundle it is clear that there were emotionally intense exchanges from V, W and others on the forum to X. Later in November 2014 B travelled to be there during a scan and saw X for the first time since March 2014 (when they met at the fast food outlet to sign the agreement). They do not appear to have discussed V or what had happened between them. X’s anxiety had increased and in late November she asked V to speak to or text her sister. It was around this time that she decided to seek a termination and turned to W for support.

In the event, she didn’t have a termination, but she did tell A and B that there had been a miscarriage. The woman running the Facebook group, W, doesn’t come out of this judgment terribly well.

Miscarriage, birth and the role of W

Although there is no evidence before the court to establish that W is an agent or runs an agency it is clear that she has had a very strong interest in linking surrogates to commissioning parents and being involved in surrogacy. Precisely what her motivation for taking on this role is not something that this court is in a position to decide. As can be seen from the messages that passed between them W offered to “link” or introduce the applicants to X and repeatedly told them she had many other contacts and options for them should the “match” not work out. W’s influence over X can be seen in her successful attempt to persuade X not to have a termination and W accepted, in her evidence, that she was instrumental in that decision.
Although W has tried to insist that she did not want to get involved in things which did not concern her, she actively and deliberately placed herself at the centre of the crisis that X was experiencing and which unfolded on the Facebook site over V in November 2014, and which, in turn, lead to X deceiving the applicants. When W gave oral evidence before me she was by turn defiant and defensive; she was unsympathetic to X and sided with the applicants who she referred to as “the boys“. W accepted that she had encouraged X to tell the applicants she had miscarried and gave as her own motivation for doing so her determination to ensure that there was no termination. She told me she was aware that the applicants’ relationship with V had ended badly and said that when X complained to her, for example about the life insurance not being in place, she had begun to believe that V might have been right about the applicants as there were now two surrogates with complaints about them.
It remains unclear from W’s written statement or from her oral evidence why she later changed her mind, took against X and decided to inform the applicants that she and X had deceived them about the miscarriage. I accept the submission made on behalf of X that W seemed personally to invest in continuing the pregnancy and then disclosing that X was still pregnant to A and B; she had no reason to involve herself to this extent apart from her own personal gratification in a sense of power or exercise of a controlling influence over the lives of others with whom she was so singularly unconcerned. At first, as can be seen from the messages exchanged between them, W urged X to carry the child rather than terminate a pregnancy; she explained to X that she was the legal parent, as X had thought she would go to prison if she did not hand over the baby at birth (another example of how little X had understood her legal position and the effects of the agreement). There can be no doubt that W can be characterised as manipulative, just as there is no doubting that X was easily led. W’s messages were directive and it was she who suggested to X how she should lie to the applicants, going as far as to say “make sure you get paid first”.
That W was duplicitous is obvious from her conduct; on the one hand she encouraged X to deceive the applicants, and some of the comments she made about A and B were vicious and unkind; and on the other having convinced X to keep the baby she then told the applicants about the pregnancy while pretending to X that she was supporting her. In what Ms Fottrell described as a particularly cruel exchange about X’s inability to afford a lawyer in any court proceedings she messaged A “lets hope she xant afford a solicitor if she cannot even afford credit on her phone! Xxx”. A’s response of “isn’t she a joke, [W]!” exposed the contempt in which he held the woman who had gone through a very difficult pregnancy at his behest, whether or not she had ended up trying to deceive him. This is in contrast to X, who has continued to seek to please the applicants, as evidenced in her readiness to agree to extended contact whenever it has been suggested to her and to ensure that Z has had an opportunity to develop a relationship with his biological father.

[The Judge doesn’t say that these messages were vile, but my personal view is that she would have been entitled to do so. You can all form your own personal views, I’m sure]

While W’s manipulation of X was calculated and had a direct impact on her, the continued inability of A and B, in their evidence before this court, even to consider that their conduct may have had something to do with the manner in which X had reacted to them is noteworthy, and in keeping with the air of victimhood on the one hand and sense of entitlement on the other trailed throughout their written evidence. It was palpably evident that A seemed to feel he had ownership of Z and that X was merely a gestational surrogate, a mere vessel, with no rights over the child she was carrying and none over the child when he was born. Throughout these proceedings as can be seen from their reaction to the guardian’s recommendations about contact and other matters concerning Z’s care both the applicants struggled to accept X as Z’s mother; the woman who carried and gave birth to him. It was not until they gave oral evidence that there was, reluctantly, an emerging acceptance of the importance of that role in Z’s life.

Like me, you might well be very relieved that the view of the Court was that X, with help from her partner and support, should keep Z and that Z should not be moved to A and B. Z will have contact with A and B one weekend every two months.

There are some massive lessons to be learned from this case – treating people with kindness and respect is much more likely to result in a workable surrogacy arrangement than treating them as merely a ‘vessel’ and the arrangement as a commercial transaction or purchase; that if surrogacy agreements go wrong they can take a great deal of time, heartache and money to unpick and put right, and that surely we need some proper form of protection so that someone like X who was naïve, gullible, easily led, vulnerable and sufficiently poor that she had difficulty in even keeping credit on her phone is not exploited or manipulated by others who don’t have those vulnerabilities.

6 Comments

Posted in case law and tagged 2016 EWFC 34, commercial surrogacy, HFEA, Ms Justice Russell, payment for surrogates, re z surrogacy agreeements child arrangements 2016, surrogacy, Z surrogacy arrangements 2016. Bookmark the permalink.

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.

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.