Lessons from the Ellie Butler case
October 3rd London Resolution

Sarah Phillimore Child Protection Resource
Lucy Reed Pink Tape
Andrew Pack Suesspicious minds

Handouts :

Sarah Phillimore’s handout

Lucy Reed’s handout – the view looking back

List of resources with links

Introduction:

Together our speakers represent the Transparency Project, to signpost people to resources to understand the law. Work to improve quality and range of information available to the public.

We hope to share some interesting thoughts and lessons from the Ellie Butler case.
We will hear from each of the speakers and then have a discussion. Documents will go onto The Transparency Project website but we will also upload some discussions. No one’s names will be published without consent but idea is we can have interesting and informed discussion.

Thank you to the speakers.

Andrew Pack

Will give overview of EB case. As most of you know Ellie suffered what appeared to be a classic shaking injury – bleed on brain, admission to hospital. Father charged with assault and within care proceedings LA sought and obtained finding of non accidental injury. He was later convicted in criminal court and sentenced to prison. Ellie went to live with her maternal grandparents. Father appealed his criminal conviction. It took several years to come through but then his conviction was quashed. Shaking cases had become controversial with debate about degree of injury necessary. See Dr Squiers debate – she said these are injuries that can happen with less trauma than first thought. Ben Butler was released and then sought with Jenny Grey (mother) to re-open the finding of fact. They had gone on to have another child. The case was transferred to the High Court; Hogg J went on to positively exonerate the father and directed an assessment of the parents by independent social work agency as any assessment by LA doomed to failure due to a loss of trust and confidence.

Hogg J said she had several significant concerns and required assessment – but then that assessment concluded within about a month, Ellie was returned to her parents’ care and later died.

There was a criminal trial which revealed ghastly details: the family staged a crime scene and made fake 999 call when Ellie was already dead and allowed sibling to ‘discover’ body. Both parents convicted and sentenced. Huge concern from press; how did this happen?

I wrote a blog post on the judgment of Hogg J when it first came out – I read it exactly the way she had written it. This is awful. Man wrongly accused. An awful miscarriage of justice and a wrong that she was able to put right. I didn’t read it thinking – “oooh the Judge has got it wrong”. The interesting legal thing about the case, it remains a very good authority for saying Guardians should NOT be treating this as a ‘deck chair brief’ – Guardian and counsel should be taking active role and helping court get to the truth.

I heard whispers something horrible about the case. But there were reporting restriction orders which were never published. For a long time many of us knew a story was coming – this is a child who died because a Judge got it wrong, a new dynamic and a new situation. A Judge who took a child from a place that was safe, I’m going to return you to mum and dad. As a matter of strict law, the finding that father had not shaken Ellie, remains the legal position and was not overturned. King J (in her 2014 judgment) tries to dig Hogg J out of the hole – if she had known more about the culture of violence and abuse, she might have made a different decision.
Throws up questions of judicial accountability, their role in SCR, – you can hear evidence over days and days and still get it wrong – when parents are being that good at being deceptive.

Sarah Phillimore

The different perceptions of Ben Butler – how did we get from the ‘look of love’ to a ‘violent domineering man’? Were there things that Hogg J did not give sufficient attention to, considering the narrative she imposed on the case? Judges can only decide the case that is before them – true. But Judges also need to recognise that they can and do impose their own interpretation of the facts. We all need to be alert to confirmation bias.

I have highlighted those elements of the judgment that make me uneasy – the burns to Ellie; accepted as ‘total accident’. The lack of analysis of his violent past. Acceptance that bruising to mother’s face was from Botox not abuse etc.

We are not ‘learning lessons’ because we operate in a culture of blame and shame – we need to learn from e.g. the aviation industry (for eg Matthew Syed’s ‘Black Box Thinking’) the desire for a clear narrative appears to be a basic human instinct.

We also have to be careful about the weight that we put on the ‘balance of probabilities’ – is it ever appropriate to ‘exonerate’ on this low standard of proof? Parents are increasingly vocal and unhappy about losing their children on balance of probabilities – ‘no punishment without crime’ for example.

For further detail see this post on the Child Protection Resource. 

 

Lucy Reed

I also want to talk about narrative bias. Want to raise a further note of caution and ask questions, rather than give answers. Handout is long but for you to take away and have a look at. You also have a document giving useful links and resources which will be on the TP site.

Page 17 – article in Family Law June 2012 about the gorilla video – few people notice a man in a gorilla suit who walks across the back of the room! We all see different things. When you go back and its pointed out – the gorilla is clearly there. Warning about hindsight bias. None of us can avoid it.

Thinking about this case, I feel like those days I have a late brief, a very big bundle, you read a lot of information – but somehow all of the important stuff is not there! We have massive amounts of information and judgments. But we need to be careful about the conclusions we may be properly able to draw from this case – we still have only got some information from some limited perspectives. To take it through in stages:

2012 Hogg J issues two judgments. She exonerates Ben Butler. Sarah highlights concerning features of things that are raised with Judge that get lost. Then a second judgment which is much shorter. She decides children should return. In the intervening period in summer 2012, there was an assessment by an independent social work agency. Hogg J says she is very concerned about the parents and wants to understand their behavior. By the time case comes back in the autumn things seem to have shifted. By the time we get to the final hearing in September and decision for rehabilitation to the care of the parents is taken – no one is opposing it. Everyone is in agreement.

I set that out because if you read the Serious Case Review in isolation, that would not be the narrative you would pick up about this case. There are some real tensions between the different pockets of information we have. Track through the narratives in the press and the press releases, the children’s commissioner, the Local Safeguarding Children Board, the Local Authority, the chair of the Serious Case Review, Childrens’ Commissioner, BASW – all sorts of individuals and bodies raising concerns. Primarily they take concerns about 2012 judgment and run with that narrative. We are concerned about non participation of judiciary in SCR. An another established narrative – LA fought this case to the end and the Maternal grandfather warned the judge she would have ‘blood on her hands’. But from the judgment we know the grandfather was not opposing. We don’t know why – it might have been for example because he had change of heart, ran out of money, or saw the writing on the wall? But we don’t know. This piece of narrative you won’t pick up if you read narrative in the public domain.

The LA withdrew their threshold. We don’t know why. Again we can speculate but don’t know why.

There are quite a lot of tensions and differences in perspectives – from grandparents, Local authority, from Independent SW report. The main source material we have are judgments and Serious Case Review. I want to flag gaps in what we have available to us.

The 2012 judgments named all the family and the sibling’s name and gender; there is now a reporting restriction order. It was an impactful judgment. They were pulled when criminal proceedings began. In 2014 when the Serious Case Review was on going King J was working on preparation of the hearing of matter relating to death of Ellie as threshold in relation to the sibling.

The 2014 judgment could not be released as criminal proceedings were on going. It was not until after the convictions in June 2016 that the press applied for release of judgment. It is graphic and very upsetting. Sets out some of the context that things would have been different if Hogg J had had that information. The 2012 judgment has still not returned to the public domain. This has impacted on the narrative. Hogg J has retired. There has never been ao press statement from Judicial Press Office, whether about the substance of case or their participation in the SCR.

The 2012 judgments are really important and are not there for people to scrutinize. It is difficult to fully understand and explore the issues when public can’t access them – for example to consider if criticisms Sarah makes are legitimate or not.

Raise some questions – even if there is a need to maintain judicial independence – are there things that might have been done to help the public better discuss this? Can we see threshold? Skeleton arguments? What was said about exoneration? Can we see the report from the Independent SW agency which seems to be the document that lead everyone to change their mind?

It would be exceptional to publish those documents – but this is an exceptional case. Why can’t we see core documents? Why can’t they be redacted and go in public domain? So we can have more of a robust discussion.

Only other point – there have been some renewed calls about the role judiciary should have in SCRs. One of points we discussed and did not agree on in the blog on The Transparency Project that led to this event is : how judges could or should participate. I think it should only happen very exceptionally. But remember when Women’s Aid published their first Child Homicides report in 2004 – Wall LJ was called to one of Select Committees and he expressed reservations that it was largely based on anecdote. The President of the Family Division then commissioned Wall LJ to investigate and make a report. Those recommendations were published and led to Practice Direction 12A about domestic violence. There is therefore a precedent for the senior judiciary responding – in an exceptional case – when they are criticized.

We need to think about this. What will the President say to the request in the SCR that the President’s Office look at decision?

We would like to hear your thoughts! What is your perspective?

Opened to the floor

Q: I was very interested in discussion about imposition of narrative and shifting perception. Max Clifford was involved – to what extent was anyone in this case influenced by this? Is this unusual feature?

AP – the involvement of Max Clifford was pretty unusual – these parents were everywhere, television etc. The really significant thing for me was the press reaction to the Hogg J judgment at the time was ‘bungling evil SW get slapped by Judge’ ‘Good on Hogg J, here’s pictures of happy family’! Parents were both telegenic, attractive people. Press reported that. The 2012 judgement was another kicking for family justice system. The press have their cake and then they eat it! During murder trial they monstered Hogg J. Tactically unwise decision to go hat shopping when sentence handed down and was door stepped by Daily Mail. ‘How could you not see he was this risk!’ – but at the time they weren’t saying that. The press approach to these things is like reading the last chapter of a murder mystery: Easy when you know the answer.

LR – partly this was the impact of reporting restriction roder – the younger sibling was named in the earlier articles so those articles have been wiped. But press did not own their previous narrative when reporting the criminal trial. A real dynamic drive of the narratives – and there was no reaction from the Judicial Press Office.

AP – the narrative drive went within hours – Ben Butler did this – to – Mrs Justice Hogg is responsible!

Q: When Hogg J said that she wanted further assessments, there was no challenging of the evidence?

AP – the assessment was conducted with none of the papers other than the court judgment

LR – but do we know that? We don’t have the LOI!

Q: who did they assess?

LR – they had limited contact with other professionals. There are some noises in the SCR about the effectiveness of communication between the LA and ISW agency. The LA felt that the impact of the judgment was they were told to ‘back off’. If you read the 2012 judgment, there are clearly defined parameters for the assessment. Did that get lost? The Guardian went off sick. LA perhaps ‘stepped back’ and other agencies didn’t know who they were liasing with.

Q: What was the evidence to support the child returning to the parents?

LR – there was no threshold. So no one was saying the younger sibling couldn’t go back. The grandparents stopped contesting the discharge of SGO and the LA were no longer parties.

Q: Simple reason GP backed out was momentum – the Hogg judgment was so strong. The ISW who made that report are subject to complaint from grandparents. It wasn’t assessment in proper sense.

LR but a question would be why did the LA not challenge the assessment? It would be really useful to discuss this.

AP you can get really steamrolled by silks. The clear narrative drive was to exonerate.

Q: neither the LA nor the grandparents could have stood in the way of the steamroller.

LR – yes I have been in that position. It is difficult. Is this going to serve any useful purpose?

AP – compelling narrative argument. By this stage Ellie had lived with the grandparents for five years. Was it in her best interests to move her? That narrative was still steam rollered by the narrative that the child should never have been taken from parents, terrible miscarriage of justice.

Q: Discussion with Louise Tickle – judicial accountability and unwillingness to participate in SCR. You broadly took view there were sound constitutional reasons this should not happen. LT said – can’t see why judiciary had zero accountability when everyone else has had to answer and I can’t see why it is above scrutiny. Would it have been useful to have judicial response.

AP a judicial response is tricky. They had option to put out a press release, to prepare during criminal trial. It would have been really useful and valuable. LA take kickings all the time when children die. People working very hard with best intentions – dreadful tragedies can still happen. Maybe name and shame culture just isn’t helpful. We are trying to predict what chaotic people do in the future and sometimes we get it wrong. If we never give parents the benefit of the doubt, will have reams of stories when parents say their children are taken away unnecessarily. It would have been really helpful for the judiciary to say that.

LR Yes – judges are humans and apply judgment. Sometimes they get it wrong. A press statement would have been really helpful. Investigate internally and publish material (as with Wall report). Maybe things are going on that we don’t yet know about.

AP a local authority who responded in the way the judiciary did – by saying nothing at all – would have been utterly battered. But Hogg J having retired she was a really easy scapegoat – press didn’t even have to demand she was sacked. Easy for everyone.

Q: power imbalance between judge and everyone else and power of the narrative – is any guidance going out to the Judges about that?

LR – I don’t know. You would have to ask the Judicial College. There is an increasing focus on the limitations of the trial process. For example the recognition that memory is fallible.

SP – needs to be much more research about the fallibility of this process. Judges pride themselves on being good at assessing credibility – but are they? We are all pretty awful at it! Mostyn J has commented in a lecture that the only evidence worth a damn is the historical documents. Memories are a construct!

LR – I am aware of some judicial training where humility at the foreground: The limitations of judging oral evidence and memory, so go back to the documents. There is thought going on about that. I would be really interested to see closing submissions by counsel for parents. There is a sense from SCR about the forcefulness of the parents’ legal teams – how did they argue that? The subsequent article in FL Journal by parents counsel talking about the satisfaction of securing an exoneration over a ‘non finding’.

Q: Crucial point about narrative drive is separate from asking judges how they want the narrative drive. Sometimes you get the feeling with certain judges they have written the shape of it, however long evidence goes on. A very disappointing experience when that happens. How as a Judge do you step back and check your own desire for a narrative?

LR : it’s about insight into the limitations of the process and your own limitations?

Q: non judicial terms like ‘narrative’ – are they nervous of accepting they must look at their own narrative?

AP –its about accepting the limitations of the system. We get a load of written evidence together, fire questions, make decisions about honesty. Doing it that way since Dickensian times. Can’t think of a better way but its an art – not a science.

SP – accept not much difference between ‘you didn’t do it on balance of probabilities’ and ‘you are exonerated’ BUT in this case it did make a huge difference because of the small independent agency who assessed and the lack of communication with other agencies.

LR – ‘respectful uncertainty’ a useful notion. But SCR refers to a ‘legal finding and not a manifestation of truth’! And that is why we ask for letters to go on the file because sometimes it is what professionals do – they ignore the findings!

AP – parents who say they don’t accept the findings lose their children.

LR parents aren’t afforded the luxury of ‘respectful uncertainty’.

SP – I was concerned with the way the burns were apparently dismissed ‘innocent mistake’. She was 7 weeks old!

LR – the context fell away because the head injuries became magnetic. How do you plead your case and where do you put your energies.

Q: SCR – really glossed over the role of the LA subsequent to place with parents. Complaints from hospital, GP schools….

LR – in cases of this sort where there is exoneration, have a multi agency debrief. Didn’t happen in this case. Professionals not sure what to do. Suggestions that most of concerns not enough evidentially. Communication between agencies not great. SCR didn’t say LA particularly at fault after return.

Q lots of things you can criticize LA for in way case was bought, but can’t criticize LA after children went home – door was shut. No supervision order.

Q: when children went home, parents at peak of their powers. No LA involvement, parents courting media interest.