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.
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.
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.