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Ellie Butler – Court of Appeal overturn decision to keep family Court judgment from Press

Just after the Ben Butler conviction about Ellie Butler’s murder, the family Court decided that the judgment of King LJ about Ellie’s death would remain confidential. At the time, nobody quite understood why.  And it was a very unpopular decision, many people feeling that the family Court had misjudged the public mood for openness and learning lessons from the case.

 

Then Pauffley J’s judgment was published and it transpired that the decision was largely about making sure that if Ben Butler appealed and got a re-hearing he couldn’t use the publication of the judgment to get off on a technicality that it had stopped him having a fair trial.

I wrote about that here

https://suesspiciousminds.com/2016/07/05/judgment-on-reporting-restriction-on-the-butlergray-case/

 

The Press appealed that decision and the Court of Appeal overturned it

Re C (A child) 2016

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/798.html

 

 

  • The central issue that arises on this appeal is whether the judgment given by Eleanor King J on 30 June 2014 (“the Judgment”) in care proceedings in respect of a child to whom I shall refer as “C” and which were conducted in private and subject to reporting restrictions should be put in the public domain. C is the younger sibling of Ellie Butler. The parents of the two children are Mr Butler and Ms Gray. On 28 October 2013, Ellie died as a result of catastrophic head injuries at the family home.
  • Following her death, Mr Butler was arrested on suspicion of her murder. C was removed from the care of Ms Gray and placed into police protection and care. Public law care proceedings were commenced and thereafter orders were made from time to time prohibiting any publication that would enable C to be identified. The first of these was made by Hogg J on 30 October 2013.
  • In the Judgment, Eleanor King J found that (i) Mr Butler had caused Ellie’s death; (ii) Ms Gray had failed to protect her from Mr Butler; and (iii) C had been the victim of physical and emotional abuse.

 

That information that Ellie’s younger sibling had been the victim of physical abuse had not been in the public domain until today. The emotional abuse we could have guessed at – given that Ben and Jennie made C find Ellie’s body as part of the cover-up, but the physical abuse is new information, and obviously significant.

 

 

  • In what follows, like the judge I shall only refer to Mr Butler. So far as I am aware, Ms Gray has not indicated that she is intending to seek leave to appeal. The letter from Bindmans was written on behalf of Mr Butler. In balancing the article 6 rights of Mr Butler against the public interest in open justice and the article 10 rights of the applicants, I am in no doubt that the judge reached the wrong conclusion. If she had made a proper assessment of the risk that there would be a violation of Mr Butler’s right to a fair trial, she would have been bound to conclude that the risk was minimal and was plainly outweighed by the countervailing considerations to which I have referred.
  • First, she made no assessment of the likelihood of a retrial. This was not the judge’s fault. It is a striking feature of this case that no attempt was made on behalf of Mr Butler to demonstrate that he had real prospects of being granted permission to appeal, still less that any appeal would be likely to succeed. In these circumstances, the judge should have approached the article 6 issue on the basis that there was at best a speculative possibility that there would be a retrial.
  • But the second and decisive reason why the judge reached the wrong conclusion is that, even if there is a retrial, there is no real possibility that the publication of the Judgment will prejudice the rights of Mr Butler to a fair trial. This is clearly demonstrated by both our domestic jurisprudence and the jurisprudence of the ECtHR which are entirely harmonious with each other on this point.
  • Our domestic law is heavily influenced by section 4(2) of the CCA which provides that an order postponing the publication of a report of proceedings can only be made “where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice”. Such an order should only be made as a “last resort”: R (Press Association) v Cambridge Crown Court [2013] 1 WLR 1979 per Lord Judge CJ at para 13.
  • In assessing whether there is a “substantial risk of prejudice”, it is necessary for the court to have regard to three matters in particular. First, juries “have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial”: Re B [2007] EMLR 5 at para 31. The importance of trusting a criminal jury to comply with directions made by the trial judge has been underlined repeatedly. For a recent example, I refer to Taylor [2013] UKPC 8 at para 25. Criminal Practice Direction 26G.3 identifies what judges should cover in their opening instructions to jurors. This includes that the jury should try the case only on the evidence and no other material. In particular, juries are directed to make no internet searches relating to the trial and to avoid discussing the case with anyone outside their number, including on social media.
  • Secondly, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice: Re B at para 25.
  • Thirdly, the “fade factor” that applies in news cases. The “staying power of news reports is very limited”: Judicial College Guidance on Reporting Restrictions in the Criminal Courts, revised in May 2016 at p 29. The significance of this factor may have reduced a little in view of the staying power of the internet. But in my view, it remains a highly relevant factor.
  • It is clear from the Strasbourg jurisprudence that, even if there were a retrial of Mr Butler, his article 6 rights would not outweigh the article 10 rights of the applicants.
  • In Beggs v United Kingdom (app. No. 15499/10), the ECtHR adopted an approach which is entirely consonant with that adopted in our domestic jurisprudence: see paras 122 to 129. It noted, in particular, in cases concerning the fairness of criminal trials, the importance of directions given to juries. In that case, there had been a “virulent and prejudicial press and media campaign” against the applicant before his criminal trial took place. The complaint that the impugned publications had influenced the jury was declared inadmissible for a number of reasons. These included that in his directions the judge had warned the jury to disregard the prejudicial material and that it was reasonable to assume that the jury would follow the directions given.
  • Abdulla Ali v United Kingdom (App. no. 30971/12) was a similar case. There was what was described as “an avalanche of objectionable material” in prominent position in both broadsheet and tabloid newspapers. The court said at para 89 that a direction to the jury to disregard extraneous material “will usually be adequate to ensure the fairness of the trial, even if there has been a highly prejudicial campaign….”. At para 91, the court said that “it will be rare that prejudicial pre-trial publicity will make a fair trial at some future date impossible.” The applicant had not pointed to a single case where the ECtHR had found a violation of article 6 on account of adverse publicity affecting the fairness of the trial itself.
  • The judge acknowledged that, in the event of a retrial, the risk of prejudice to its fairness occasioned by the publication of the Judgment was “small”. In my view, it was so negligible that it should have been given little or no weight in the balancing exercise. The judge failed to take into account (i) the fact that the jury would be directed to ignore anything they read or heard outside the trial and that it should and would be trusted to follow the directions given by the trial judge; (ii) the fact that broadcasting and newspaper editors should be trusted to behave responsibly; and (iii) the fade factor (it would be many months and possibly more than a year before a retrial would take place). If she had properly taken these factors into account, she would have been bound to conclude that the Judgment should be put into the public domain. Mr Bunting makes the further valid point that it is difficult to see how the publication of the Judgment could create a separate substantial risk of prejudice given that much of what appears in it is already in the public domain. But I do not need to examine this point in detail since the Judgment should be put into the public domain for the reasons that I have already given, subject to the redactions necessary to protect the interests of C. These redactions have been the subject of further submissions and the Court has made an Order determining the way in which the Judgment should be redacted.

 

Conclusion

 

  • For all these reasons, I would allow this appeal and permit the Judgment to be published with the approved redactions.

 

 

As far as I understand, the King LJ judgment is now in the hands of the Press, some redactions to it having been made (to preserve C’s anonymity, no doubt). It is not at the time of writing, up on Bailii but I will keep an eye out.

 

 

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Judgment on Reporting Restriction on the Butler/Gray case

This was the request of the Press to be able to have access to material from the family Courts relating to Ellie Butler, Ben Butler and Jennie Gray and to be able to report it. They made the application following the conviction of Mr Butler for murder and the conviction of Ms Gray (having pleaded guilty) to lesser counts

 

London Borough of Sutton v Gray and Others 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1608.html

 

It is worth noting that at the start of the hearing, the Local Authority and Guardian were in support of release of materials and publication (subject to some minor redactions for anonymity) but during the course of the hearing became concerned, as the Judge was, that publication might result, if an appeal were lodged, in a mistrial claim for any criminal re-hearing

 

“It would be horrific if these parents were to avoid a retrial on the basis of publication at this stage”

 

[Despite everyone’s desire for transparency and information and a proper public debate, I think all of us can agree that we would not want Mr Butler to be freed on a technicality – as opposed to convincing a fresh jury of his innocence]

 

The Press application was put in this way

 

  • A number of principles are, as Mr Bunting suggests, applicable. Open justice is at the heart of our system of justice and vital to the rule of law. It promotes the rule of law by letting in the light and allowing the public to scrutinise the workings of the law for better or for worse. There is a particular need, I altogether accept, for the media to act as a public watchdog in care proceedings in the Family Court because of the intrusion or potential intrusion into the family lives of those concerned and what could be a serious interference by the state in family life.
  • Accordingly, while there is no presumption in favour of open justice, in private proceedings concerning the welfare of children there is a fundamental need for the press to play a scrutiny role in family proceedings. That is a matter enshrined within the President’s Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230. All of that I altogether accept.
  • The foundation of the jurisdiction to restrain publicity in a case such as this is derived from rights enshrined within the European Convention on Human Rights. A balancing exercise is required between competing rights. The balancing exercise as between Articles 8 and 10 has been addressed in a number of authorities; they are well described within paragraph 17 of the application. There is no need for me to read them into this judgment. I accept Mr Bunting’s analysis.
  • It is suggested that the proceedings before Eleanor King J are of the utmost public interest. There should therefore be, it is said, a strong presumption in favour of publication. There is an important public interest in the press being able to follow and understand those proceedings for the reasons described by Mr. Bunting; and there is a profound public interest in the press being able to investigate and, as necessary, report the varying approaches of the Family Court to the care proceedings relating to Mr. Butler and Miss Gray. These care proceedings, it is said, and I accept, place the Family Court under a particular spotlight and cry out for public exploration.
  • Mr. Bunting then goes on to say that in so far as the judgment and order of 30th June 2014 have been withheld from the press to protect against injustice in the criminal proceedings, this justification falls away upon the verdict given yesterday at the Old Bailey by the jury.

 

 

The Judge, Mrs Justice Pauffley, was rightly concerned with the prospect of an appeal being lodged and if successful it being argued that disclosure of material which a jury would not ordinarily see being used as a technical argument for that Mr Butler could not get a fair trial at any such re-hearing.

 

    1. My starting point is the President’s guidance of 16 January 2014 – ‘Transparency in the Family Courts: Publication of Judgments’ and particularly paragraph 19 where he makes clear that in deciding whether and, if so, when to publish a judgment, a judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention, particularly Article 6, respect for private and family life, Article 8 and Article 10 freedom of expression. The guidance then, materially, continues thus, “And the effect of publication upon any current or potential criminal proceedings”.
    2. All the signs are that the criminal processes involving Ben Butler are not yet over. Yesterday, as is reported on the BBC website, after the guilty verdict, Mr. Butler shouted out, “I’ll fight for the rest of my life. Unbelievable” before adding, “I want to be sentenced now so I can fight in the appeal court”. He added, “I’ll fight for ever to prove this wrong. My daughter was jumping in the house. I am 100% not guilty.” Miss Gray added, “Big mistake. Spend another ten years proving you wrong”. Those expressions of view, albeit uttered in the heat of the moment and immediately after the verdict, give some solid indication that the criminal proceedings are likely to extend to the making of an application for permission to appeal and to a submission that his conviction should be overturned.
    3. The reporting of King J’s judgment, were I to give permission to release it to the media, is likely to be very extensive indeed. It will be, if I am able to forecast anything, front page news. I am fully aware of the extent of public interest in the circumstances of this case, the background, the extent to which the Family Court has been involved as well as to the many legal processes leading to yesterday’s verdict.
    4. It is instructive, to my mind, to recall the manner in which there was reporting of the very sad circumstances of Khyra Ishaq’s pitiful life and terrible death in the aftermath of her mother’s conviction for causing that child’s death in about February 2010. There was, in the immediate aftermath of the criminal trial widespread front page, very prominent and extensive references to the judgment given many months, even perhaps years, previously by Eleanor King J.
    5. There is a very high likelihood, indeed it is inevitable, in my assessment, that there would be the most widespread and extensive reporting of the content of King J’s judgment in this instance. Would there be repercussions for the criminal appeal’s process? Mr. Bunting invites me to significantly doubt that there would be prejudice. He says there is a long way to go before any retrial. It is unclear as to whether one would be ordered. There may be a slender prospect, he argues, and it may be in the distant future and it is insufficient to outweigh the public interest in favour of publication.
    6. I would suppose that three options exist for the appeal which Ben Butler made clear yesterday he is intent on pursuing: firstly, that it is dismissed; second, that it is allowed and the conviction quashed; and, third, that the appeal is allowed to the extent that a retrial is ordered. I have no means of forecasting, no one has any means of predicting with any degree of accuracy, or at all, what will happen in connection with the proposed appeal. If there is any potential for a retrial then it seems to me that for exactly the same reasons as underpinned the decision of Eleanor King J not to release her judgment in 2014, I must do likewise.
    7. It is useful to reflect upon the words of Mr. Justice MacDonald in the case of H v A No. 2 [2015] EWHC 2630 when he said, albeit in a slightly different context:

“In the age of the Internet, … today’s news story no longer becomes tomorrow’s discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms …”.

  1. We are, I would observe, in a very different environment to that which existed even ten years ago. There is the potential for prejudice to, even the derailing of, the criminal process. That, to my mind, is manifest. The risk may be, as Mr. Bunting suggests, small but the consequences for the criminal process could be incalculable.
  2. One scenario, quite obviously, is that Mr. Butler might seek to argue that consequent upon the publicity accompanying the publication of Eleanor King J’s judgment, which is bound to contain a great deal more material than is currently in the public domain, he could not be assured of a fair trial. That possibility, the potential for that eventuality, inevitably compels me to dismiss this application.
  3. One thing though should emerge and be made abundantly clear. The arguments in favour of the release of King J’s judgment are powerful and strong. They will remain so. I fully expect that so soon as the criminal appeals’ process is at an end a full, suitably redacted version of the 30th June 2014 judgment will be published. That is my judgment.

 

 

Unless an appeal is brought on fresh evidence, a criminal appeal must be lodged within 28 days of conviction (if appealing against conviction) or 28 days of sentence (if appealing on sentence), so the appeal window expires at the end of July.  If Mr Butler does not lodge such an appeal, I would expect the Press to revive their request to see the judgments and to be able to publish stories that provide detail from them.  If an appeal IS lodged, then the publication and release of the material will have to wait until that appeal runs its course, which could be many months.

Frustrating, particularly given how much material came into the public domain after conviction (for example Mr Butler’s previous convictions, which a jury would not normally see or hear about) but absolutely nobody would want this case to be determined on a technicality. If Mr Butler does appeal and gets a re-hearing, it must be decided on the facts of the case and its merits, not by a technicality.

 

 

 

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.

“Blood on her hands”

 

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

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

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

 

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

 

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

 

Eleven months later, Ellie was dead.

 

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

 

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

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

 

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

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

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

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

But it was.

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

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

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

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

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

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

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

 

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

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