The Children And Social Work Bill is going through Parliament at present. It has been controversial due to parts which some have said would allow social services to be privatised and which could remove current safeguards.
This post is about another aspect of the Bill, or more particularly about a topic which has cropped up in the context of proposed reforms to the system of Serious Case Reviews (Serious Case Reviews happen when a child (often one who is known to social services) dies or is seriously injured*) – the Ellie Butler case. The proposal is to create a national Child Safeguarding Practice Review Panel to deal with cases of national importance, of which it is said Ellie Butler is a recent example. *[we edited this sentence slightly on 26/10/16 to more accurately describe Serious Case Reviews]
First of all, here is what has been said by various Lords about the Butler case (we’ve provided a mini-bio and links to their Wikipedia pages at the foot of this post for reference, if you don’t know who they are). Although it makes this post rather long, we’ve set out the speeches in full so you don’t have to keep flipping backwards and forwards.
6 July, in committee, there was a discussion around some amendments relating to the role of grandparents. Baroness Bakewell of Hardington Mandeville said :
Grandparents play among the most important roles in a child life. The Children Act 2004 removed the right of grandparents to have access to their grandchildren. While this may be necessary in some cases, I believe that it was a retrograde step. In recent weeks, we saw the tragic case of Ellie Butler who, after five happy years with her grandparents, was returned to the care of her parents, with disastrous results. Her loving grandparents had been in the process of adopting Ellie legally. All was going well with the support of the local council, when the adoption was blocked by a social worker. As we all know, the decision to disregard the grandparents led to Ellie’s early death. We have already debated the need to listen to the views of the child and for communication with the child. It is essential that children’s wishes, including staying with supportive grandparents, while still having some access to their parents, are adhered to wherever possible. I am firmly of the opinion that now is the time to reinstate the importance of grandparents in a child’s life and would like to see this amendment in the Bill. I look forward to the Minister’s response.
Baroness Howarth of Breckland said :
What I have learned from working in the north of England, where all my family are, is that grandparents up there are mostly caring informally for their grandchildren. It is only when things go seriously wrong that they suddenly find that they are not adequate to care for those grandchildren, because the assessment says that they have to be moved somewhere else. That is where the two parts of this Bill meet, because we are looking for good assessment by a social worker. Of course, the child’s needs must be paramount; you do not leave a child with a grandparent who does not have the ability to care for that child—but surely it is better, if they have made that relationship and the grandparent is fit to care, that they continue. The recent death of Ellie Butler is an example of that.
Lord Warner said :
I was seriously shocked by the Ellie Butler case. I thought it was the most appalling outcome for that child, and I will return to this issue on a later amendment. We have rather lost the plot on grandparents, who are a major resource for caring. We seem to forget that people can become grandparents very much younger than in previous eras; they can be grandparents in their late 40s and early 50s. In addition, grandparents are living longer and many of them are living fitter lives; they are quite capable of dealing with children. We are missing a trick in not recognising grandparents as a serious care resource. We should try to establish that very firmly in the Bill and recognise that we are in a very different position with grandparents from that which pertained several decades ago.
Baroness Evans of Bowes Park said :
As for ensuring that grandparents are considered as possible carers at the point when adoption decisions are made, the law already provides for this in the Children Act 1989. Where courts and adoption agencies feel that there is a significant relationship between a child and their grandparents, they have the authority to consider a grandparent to be a “relevant person” and take that relationship into account. The noble Lord, Lord Warner, and the noble Baroness, Lady Bakewell, rightly raised the deeply tragic case of Ellie Butler. We welcome the fact that a serious case review has been carried out. It is absolutely vital that lessons are learned. That is why we are establishing the new Child Safeguarding Practice Review Panel, which we will be discussing later, to identify and undertake reviews of the most serious incidents that raise issues of national importance, so that learning from them can be properly understood and shared.
You can read this bit of the debate here (use ctrl + f and search for ellie butler to locate the relevant part).
11 July, in Committee, Lord Warner said this in the context of a proposed amendment to the Bill which would enable a request for information by the Child Safeguarding Practice Review Panel to be enforced by application to the High Court for an injunction :
My Lords, we had a good go over the issue of the judiciary on our last Committee day. The Minister slid very quickly over this particular issue in his remarks—namely, that judges are exempt. Can he pray in aid what the provisions are that stop a review panel looking at the conduct of a judge? We spent a lot of time on the case of Ellie Butler, but that was clearly a case where the practice of the judge could be called into question—not just on the individual circumstances but on the systems issue of whether the judge could actually replace social workers who had been protecting the child for some period and bring into being a new review of the child’s circumstances by a set of private social workers, for whom the child was a new client. That is a systems issue; it is not just about the judgment of the judge but about a piece of practice that seems to me to be at least arguable. Why, in that set of circumstances, should the judiciary be exempt from review by this panel?
In response, Lord Nash said he would write to Lord Warner. The amendment providing for enforcement went forward. You can read this bit of the debate here (use ctrl + f and search for ellie butler to locate the relevant part).
On 18 October, at report stage, Lord Warner put forward an amendment which was said to
[seek] to encourage the Secretary of State to cover in guidance what happens when the actions of a court have implications for the way that a local authority discharges its safeguarding responsibilities but these cannot be considered by the new Child Safeguarding Practice Review Panel.
Lord Warner said this :
I have framed this amendment in the way I have because of my considerable concerns about what happened in the tragic case of Ellie Butler, who was placed by the court with her father, who brutally murdered her some months later. We went over that ground in Committee and I am grateful to the Minister for the letter he wrote to me on 9 September—I think he copied it to other Members who spoke in those Committee debates. However, that letter raises more questions than it answers.
Leaving aside the devastating consequences of the judge’s error of judgment—for which, incidentally, I would say a social worker would have been publicly crucified—the case raised some serious systems issues that the new review panel apparently cannot explore, because the Government are ruling that it would be unconstitutional for the panel to review the conduct of a judge. Yet the Minister’s letter makes it clear that the guidance in Working Together, published in 2015, does not specify that the judiciary is exempt from the serious case review process. We have here a conflict between what the Government’s guidance says and what the Minister is saying during the passage of the Bill.
This ruling by the Ministry of Justice that it is unconstitutional seems to mean that no learning can take place from erroneous behaviour by the courts. This is particularly important in this case, because of the judge’s rulings in relation to the local authority, which I think has also been discussed between the London Borough of Sutton, the MoJ and the Minister’s department. The judge’s ruling in relation to Ellie Butler meant that the London Borough of Sutton, which had been responsible, with some success, for protecting Ellie became debarred from exercising the safeguarding responsibilities conferred on it by Parliament. Sutton had been exercising its statutory duty to safeguard children in the borough—a duty, as I say, conferred on it by Parliament.
However, the judge appointed two private independent social workers to review the local authority’s decision-making. These seem to have advised that it was safe to place Ellie with her parents, a diametrically opposed view from that of the local authority which had been safeguarding this child. These social workers, commissioned by the court, appear to have had no background experience of Ellie’s situation and to have been a small partnership without the back-up resources and supervision, including legal resources, of a local authority. My understanding—the Minister may want to confirm or deny this—is that entities such as those independent social workers are unregulated. They will be on the register as a social worker but we know no more about them. They are on a panel list but there is no regulation, as I understand it, of partnerships of independent social workers. I would be grateful if the Minister and his department can tell me whether that is correct.
It gets worse, because the judge also seems to have ruled that the local authority should desist from contact with the family, thereby effectively debarring it from discharging its obligations to safeguard Ellie—or, indeed, the other child who, as I understand it, was in that household. Again, I understand that the various agencies were also told to remove information about the father from their records. This is all in the public arena. I am not making this up; it is what happened in this particular case. Sadly, history suggests that there may well be other Ellie Butler cases of some kind, which is why the Government are setting up a very important Child Safeguarding Practice Review Panel at the national level.
If the Government are to set up a new and more powerful national child safeguarding review panel, which I and I think other Members of this House totally support, it seems somewhat bizarre to prevent it exploring behaviour in the courts that could put vulnerable children at serious risk. For example, how are the courts to learn the errors of their ways and be provided with guidance and training? Perhaps as worrying is the clear lesson from this case that a court can apparently set aside a statutory duty placed on local authorities by Parliament to safeguard children in their area. To say the least, this is a very confusing situation in which to place local authorities and their hard-working social workers.
I know that there is supposed to be, or may have been, a meeting between the London Borough of Sutton and the President of the Family Division, but I am most intrigued about what the Family Division will do regarding this case. Will it give guidance to judges? Will it affect the training of judges in cases of this kind? Who knows? What we now have is a cloak of silence over what happens in the courts when something goes badly wrong.
My belief is that the Government should at the very least accept an amendment of the kind that I have produced. It would require the Secretary of State to make it clear in guidance what actually happens if the courts are to be excluded from the work of the new safeguarding review panel. How are social services departments to behave and learn from that experience? What relationship will there be with the Ministry of Justice and the courts for learning from mistakes, which will from time to time inevitably be made in the courts? Judges are human beings and not perfect. From time to time, they make mistakes. At the least, we have to make it clear in the guidance that goes out to local authorities about this new panel how they should deal with a situation of the kind that arose in this case. I beg to move.
This led to the following exchanges.
Baroness Pinnock : My Lords, I thank the noble Lord, Lord Warner, for raising this issue. It looked a fairly innocuous amendment when I read it in the Marshalled List but out has come a really powerful case, based on an actual case that went before the courts, for a change in the Government’s legislation. So far as I can tell, there have been no answers as a result of that appalling tragedy, which was partly brought about by the judgment of the courts. The noble Lord, Lord Warner, is challenging the Government to be as responsive to errors in the courts as they are to errors in social services safeguarding practices. There is a case to be answered and I look forward to the Minister’s response.
Lord Hunt of Kings Heath : My Lords, clearly there are huge constitutional issues around the independence of the judiciary and there would be a very strong view in your Lordships’ House of the need to protect at all costs that independence in the judgments they make. Equally, what we would like from the Minister is some assurance that, in the generality of judicial actions in this area, there is at least some work in relation to lessons to be learned. The change in the wording from “lessons learned” to “improvement” reinforces the case that the impact of judicial decisions must surely be considered as part of a general improvement agenda, without in any way seeking to interfere in the role of the judiciary and, of course, its judicial independence.
Lord Nash : My Lords, I am grateful to the noble Lord, Lord Warner, for this amendment and for the important issue that he has raised. As noble Lords will recall, in Grand Committee he raised the role of the judiciary in serious cases involving children, with particular reference to the tragic case of Ellie Butler. I have since written to him further on this matter, as he said. Noble Lords will also recall that, in the Butler case, Ellie’s father had his conviction for grievous bodily harm in relation to injuries suffered by Ellie overturned by the Court of Appeal. Later, a finding of fact judgment, which took place as part of care proceedings, was also overturned. That led to the return of Ellie and her sibling to the care of her parents, a process overseen by an independent social work agency under instruction from the court, as the noble Lord, Lord Warner, has said. Tragically, within a year of being returned to her parents, Ellie was murdered by her father.
No one can fail to have been moved by the circumstances of that case, and it is understandable that queries have been raised about the impact of judicial decisions in particular cases, and the role of the judiciary in the serious case review process more generally. However, as the noble Lord, Lord Hunt, has mentioned, the judiciary is independent and, for constitutional reasons, it cannot and should not be held to account by the current serious case review process, or, in future, by the Child Safeguarding Practice Review Panel. This does not mean that there is no process for responding to decisions made by judges—which may be appealed at the time. Alternatively, if there is concern about a judge’s conduct, a complaint may be made to the Judicial Conduct Investigations Office.
I appreciate the noble Lord’s concern—which he has also put in writing to me— about the potential impact of judicial decision-making on the ability of local authorities to discharge their statutory functions. I agree that this may be a matter which reviews carried out on behalf of the panel could highlight. The noble Lord will appreciate that, through this Bill, it will be the role of the Child Safeguarding Practice Review Panel to identify serious child safeguarding cases that raise issues which are complex or of national importance and to supervise the production and publication of reviews. The panel will certainly be concerned to make recommendations, through its reviews, as to what improvements should be made by safeguarding partners or others in respect of the safeguarding and welfare of children. Where such recommendations relate to, or could relate to, judicial practice, the Department for Education will continue to work closely with colleagues from the Ministry of Justice to communicate these recommendations to the judiciary, so that the judiciary can consider what, if any, impact there should be on judicial practice. Judicial practice does, of course, remain a matter for the judiciary itself.
It is not that the panel cannot review and make recommendations; it can. It just cannot direct the judiciary, although we will work with it to make sure that lessons are conveyed. Given the panel’s remit and concerns that have been expressed regarding the need for the panel to be independent of the Government, I do not feel that it would be appropriate to include guidance from the Secretary of State to the panel on this issue. The panel must be free to set its own terms of reference for individual reviews, and I would expect this to include consideration of how a local authority has discharged its safeguarding responsibilities under all circumstances—or if, indeed, it had had difficulty in discharging them for whatever reason. Indeed, this consideration would also apply to all other agencies and could be a significant finding in a review leading to improved practice across the country. However, as each case will be different, general guidance to address what will be a case-by-case consideration is not likely to be beneficial or practicable.
On whether independent social workers are regulated, I assure the noble Lord that all social workers are professionally regulated. In view of this, I hope that he will be reassured about the scope of the panel’s functions, including the need for the panel to be able to treat each situation on a case-by-case basis and make the recommendations it sees fit, and therefore will feel able to withdraw the amendment.
The amendment in question was withdrawn. You can read this bit of the debate here (use ctrl + f and search for ellie butler to locate the relevant part).
Were the Lords accurate when talking about the Butler case?
So, what’s this all about and how accurate is what has been said about Ellie Butler and the circumstances of her death / the family court’s handling of her case? Three of our members have written and discussed some of these issues in a talk on the Ellie Butler case, and you can read their notes here, which link to most of the published material and provide a timeline of events, drawn from those documents.
Most of our analysis is drawn from the Serious Case Review (referred to as Child D) and the various judgments in this case. Unfortunately the two judgments which are arguably the most important were removed from BAILII during the criminal trial and have not been republished. They continue to be available on subscription services to the legal and academic community. Whilst we have no doubt that a member of the House of Lords could have accessed this source material if they had sought it out (we anticipate that the Parliamentary library has reasonable facilities), we are mindful of the fact that these judgments are not as readily accessible as they might be. We do not think this has aided public debate and may have contributed to some of the errors we have flagged below, which are now deeply woven into the publicly available information on this case.
We have pasted some extracts from the 2012 judgments at the end of this post so you can see what was said by the court at the time about the social work assessments in respect of Ellie and about the positions of the parties as things developed. We are working on the basis that the judgments reflect the correct position of the parties at the time when they were delivered / published. There are definitely some apparent contradictions between some material in the public domain and the contents of the judgments, but we have not seen any commentator, professional or otherwise, directly challenge the accuracy of the judgments. By and large public comment seems to have been conducted to date without reference to the judgments.
We’ve used a sort of traffic lights system of green, amber, red, to highlight where we think the Lords have got things right, not quite right, and wrong in comparison with the judgments / other published material.
Baroness Bakewell :
- Ellie had been living with her grandparents for around 5 years when she was returned to the care of her parents. CORRECT.
- “The grandparents had been in the process of adopting Ellie.” The grandparents had NOT been in the process of adopting Ellie. They held a Special Guardianship Order for Ellie and this was a final order made in August 2008. There was no ongoing issue in relation to Ellie’s long term placement until after the quashing of her father’s conviction for harming her in 2010, and there was no application for Ellie to be moved from her grandparents care until after the father was exonerated at the rehearing of the case by Mrs Justice Hogg in the summer of 2012 . INCORRECT.
- “The adoption was blocked by a social worker.” There was no application for adoption (above). We think this is a reference to the independent social worker(s) who recommended that the move from the grandparents to the parents should be done quickly. From the published material it is not clear that the ISWs were asked to offer a view on whether Ellie should be returned to her parents care, merely on how it should be achieved. It is clear from the judgments from 2012 that, whatever misgivings they may have had, the Local Authority AND the grandparents ultimately agreed to the move. We think the Baroness is probably relying on assertions made by the grandfather in the press shortly following the parents convictions relating to Ellie’s death, but those don’t quite match the documents from the time of the return to the parents. INCORRECT.
- “The decision to disregard the grandparents led to Ellie’s early death.” As above, the grandparents were not disregarded. Ellie’s father is responsible for her death, along with her mother who failed to protect her. It might reasonably be said that failures to properly assess or appreciate the risks to Ellie from her parents led to her early death, but in view of the grandparents agreeing to Ellie’s move to her parents along with her sibling, we don’t think this statement is a fair or full representation of the position. NOT THE WHOLE STORY.
Lord Warner :
- “Ellie Butler, who was placed by the court with her father, who brutally murdered her some months later.” This of course is accurate, but it is right to record that all parties agreed this course of action. CORRECT.
- This was “clearly a case where the practice of the judge could be called into question”. People are quite entitled to ask about the practice of the judge in the case. NO ISSUE.
- Identification of a “systems issue of whether the judge could actually replace social workers who had been protecting the child for some period and bring into being a new review of the child’s circumstances by a set of private social workers, for whom the child was a new client.” INCORRECT / MISUNDERSTANDING OF LAW.
- A judge has NO POWER to replace social workers. Although a judge may properly express a view about the competence or practice of social workers, and this might extend to offering a view about whether there should be a change of social worker this is ultimately a matter for the local authority.
- The “private social workers” were jointly instructed at joint public expense (legal aid / local authority funds) on behalf of all parties to assess the mechanism of return of Ellie and her sibling. Therefore the “clients” were the children AND their parents / guardian / social services.
- The serious case review suggests that there was some lack of clarity about the respective roles of the local authority social workers and the independent court appointed social workers, but we think it is a misunderstanding to suggest that the ISWs could be ordered to take over the statutory safeguarding responsibilities of the local authority.
- “the devastating consequences of the judge’s error of judgment—for which, incidentally, I would say a social worker would have been publicly crucified—the case raised some serious systems issues that the new review panel apparently cannot explore, because the Government are ruling that it would be unconstitutional for the panel to review the conduct of a judge.” UNCLEAR / UNHELPFUL.
- Whilst it is a legitimate view that there was an error of judgment, we think it is probably oversimplifying things to attempt to reduce the case to a simple/ single error of judgment.
- Although we agree that social workers are often subjected to very harsh public vilification, we are not quite sure what is meant here since social workers were involved. The Local Authority social workers appear to have instructed their legal team to agree to the move on their behalf, and they have not been vilified. The independent social workers have been subject to some public criticism, but it is difficult to form a view on their role because of the limited information available about their actual remit and the quality of their work. We are not sure the comparison is helpful here – is Lord Warner suggesting that both social workers ad judges should be publicly crucified? How does that help promote the learning of lessons?
- We aren’t quite sure what “ruling” means in this context but it is undoubtedly longstanding public policy / constitutional convention that the independence of the judiciary should not be called into question. Lord Nash explains that in his speech.
- “no learning can take place through erroneous behaviour of the courts.” Whilst we wouldn’t suggest that things can’t be improved we don’t think it is accurate to say no learning can take place. There is a well developed appellate system through which judges are regularly criticised by more senior judges when their decisions fall short, and such judgments are widely circulated and discussed and a useful tool for improving the working practice of judges and other professionals in the field (See for example Re B-S 2013). There is currently nothing to stop SCR authors from offering learning points to the judiciary, although the fact that the judiciary do not actively participate in SCRs is likely to limit the extent to which they can make useful comment. Further, there is some precedent for the senior judiciary to respond to public criticism by the commissioning of their own internal reviews (See Wall LJ’s response to the 29 Homicides Report) NOT ENTIRELY ACCURATE / FAIR.
- “The judge’s ruling in relation to Ellie Butler meant that the London Borough of Sutton, which had been responsible, with some success, for protecting Ellie became debarred from exercising the safeguarding responsibilities conferred on it by Parliament. Sutton had been exercising its statutory duty to safeguard children in the borough—a duty, as I say, conferred on it by Parliament.” As explained above this is legally incorrect. It IS correct to say that Parliament confers safeguarding duties on local authorities. However, a judge has no power to debar a local authority from exercising its safeguarding responsibilities and any judge who purported to do so would be liable to appeal or judicial review. INCORRECT.
- “However, the judge appointed two private independent social workers to review the local authority’s decision-making.” INCORRECT.
- This is not what the judgments of Mrs Justice Hogg show. The judgments show that the judge required an assessment to assist her in deciding about Ellie’s sibling, and subsequently in deciding how (not if) Ellie’s move should be facilitated. She asked an independent agency to do this work because she did not think the parents would feel able to work with the local authority (see extracts from judgments below).
- The judge did not order any assessment that involved reviewing the local authority’s decision making.
- It is common for a court to authorise or request assessments by independent experts, including social work experts (albeit perhaps less so now than in the past). The instruction of does not usually lead to a complaint that the local authority’s statutory duties have been ousted : a local authority is entitled to disagree with and challenge the report / opinion of the expert. In this case they chose not to do so so.
- “The ISWs seem to have advised that it was safe to place Ellie with her parents, a diametrically opposed view from that of the local authority which had been safeguarding this child.” INCORRECT.
- We have not seen any evidence that the ISWs were asked this question or that they offered this view (See extracts below from judgments).
- It is possible that they could legitimately be criticised for failing to pick up on warning signs and for failing to draw those to the attention of the court / parties, but we don’t know because their reports are not publicly available. Further, although the LA may have held concerns about the safety of Ellie, they did agree she should return home (See judgment below).
- “These social workers, commissioned by the court, appear to have had no background experience of Ellie’s situation and to have been a small partnership without the back-up resources and supervision, including legal resources, of a local authority…entities such as those independent social workers are unregulated.” PARTIALLY INCORRECT.
- The ISWs appear to have had a copy of the judgment but not the full bundle. Rightly or wrongly this is not uncommon in cases where findings have been sought and not found, because there is a risk that an expert’s view will become contaminated by reading papers where a view is expressed that is contrary to the proven facts.
- From the SCR and publicly available information this does seem to have been a small outfit. We are not sure why an ISW would need legal resources since they were not performing any statutory function but were acting as court appointed experts.
- ISWs are not unregulated. They are regulated by the HCPC. It is correct to say however that they are not specifically regulated as partnerships, and that the various layers of oversight that apply to local authorities as public bodies and to their employees, are not applied to ISWs.
- “the judge…ruled that the local authority should desist from contact with the family, thereby effectively debarring it from discharging its obligations to safeguard Ellie—or, indeed, the other child who, as I understand it, was in that household. Again, I understand that the various agencies were also told to remove information about the father from their records. This is all in the public arena. I am not making this up; it is what happened in this particular case.” INCORRECT.
- There is NOTHING that we have seen in the public arena which suggests or demonstrates that the LA were debarred from contacting the family or from discharging its obligations. Indeed the SCR makes clear that whilst help was rejected and communication was difficult, the LA did continue making contact with the family.
- There is NOTHING that we have seen in the public arena which suggests or demonstrates that agencies were told to remove information from their records. We think this is an inaccurate reference to the accounts in the SCR that the judge directed or permitted the sending of a letter to agencies making clear that the father had been exonerated of harming Ellie. The judge would have had no power to order an agency to remove safeguarding information from the records of any agency but could quite properly have asked for a clear record of her findings to be placed on a child’s file so that there was no future confusion about whether or not the father was responsible for the injuries.
- Lord Warner makes a point of saying emphatically “This is all in the public arena. I am not making this up.” However, if there IS information in the public domain that says this, it is inconsistent with both the SCR AND the judgments of Mrs Justice Hogg and we cannot find it. We think it is more likely that this is just a sloppily expressed and inaccurate reference to the letter sent to agencies explaining the exoneration (around which there is already some lack of clarity – see LR’s notes for Butler talk here).
- “the clear lesson from this case that a court can apparently set aside a statutory duty placed on local authorities by Parliament to safeguard children in their area.” See above. The court can’t. And didn’t. The SCR suggests that some professionals felt that they were being sent a message to “back off”. What is less than clear from the SCR is what the root of this perception was. The judgments of Hogg J do not suggest she was attempting to set aside the statutory duties of the LA. INCORRECT.
- “The Minister mentioned appeals, but they can take a very long time, and there is a very good chance that Ellie would have been dead before an appeal was heard in her case.” Appeals can take a long time. However, they can be expedited. It is of course impossible to construct an alternate reality as to what might have happened if… It would have been open to the Local Authority or some other party to appeal the exoneration of Ben Butler in 2012, but it appears from the SCR that this was considered by the Local Authority and discounted as unlikely to succeed (we agree). The more pertinent question, we think, might be around why the Local Authority decided not to pursue other findings against Ben Butler when the court reconvened in the autumn of 2012. It’s decision to abandon any other findings was welcomed by the court and cleared the way for Ellie’s return home. OFF POINT.
Lord Nash :
- “Ellie’s father had his conviction for grievous bodily harm in relation to injuries suffered by Ellie overturned by the Court of Appeal. Later, a finding of fact judgment, which took place as part of care proceedings, was also overturned. That led to the return of Ellie and her sibling to the care of her parents, a process overseen by an independent social work agency under instruction from the court, as the noble Lord, Lord Warner, has said. Tragically, within a year of being returned to her parents, Ellie was murdered by her father.” CORRECT.
- “In this case, the judge changed the law and inhibited the local authority in discharging its statutory safeguarding duties.” For the reasons set out above this is wrong. Judges do not MAKE or CHANGE the law. We are surprised that a peer would think this was possible. No party to the case suggested that the judge was stepping outside her powers in directing the joint instruction of an expert, which is a power specifically provided for in the Family Procedure Rules (approved by Parliament through secondary legislation) and (since this case happened) through s13 Chidlren & Families Act 2014. If the judge had been acting without jurisdiction we would have expected an appeal. INCORRECT.
There is a quite legitimate public public debate to be had about how the judiciary should or should not participate in serious case reviews or similar, or at any rate how systems might be put in place to ensure that the judiciary learn from mistakes made (and they must be made in this walk of life just as in any other). The Transparency Project doesn’t have a position on that, although some of its individual members do (those views vary as you can see from the Butler talk and the collaborative blog post we wrote here).
We think its really important to correct newspapers when they get things wrong because the public rely upon the newspapers as one of their main sources of information and they may be misled. We think that, although less members of the public are likely to be scouring Hansard to find out the details of what was said on Hansard, it is also important to correct the record where something has been said in Parliament that seems to be inaccurate or inconsistent with other publicly available information, not least because such remarks are likely themselves to be reported in the press, to become accepted fact and relied upon by the public indirectly. Also, most members of the public (and probably journalists too) might reasonably assume that if its been said by a Lord in the House of Lords it is probably accurate.
It is of course also of concern if policy and legislation is being framed or revised on the basis of inaccurate factual information. The case of Ellie Butler is a tragic and powerful illustration of when things go wrong, and it is really important that if it is prayed in aid as an example that this is done with care.
We’re really concerned about the fact that peers appear to be relying in some instances on inaccurate versions of events whirling around in the public domain which are inconsistent with the core documents in the case, and which do not bear proper analysis or scrutiny. We would have hoped that the standard of fact checking and legal understanding would have been higher in our senior law making chamber.
FOOTNOTE 1 Who are the people mentioned in this post?
Baroness Bakewell aka Joan Bakewell journalist and tv presenter. (wikipedia)
Lord Warner is a former civil servant and now crossbench peer. (wikipedia)
Lord Nash is a former British businessman, and Conservative Under Secretary of State for Schools. (also apparently keeper of the crypt, but we don’t know what that is!) (wikipedia)
Baroness Pinnock is a Lib Dem peer and former teacher, also former leader of Kirklees BC. (wikipedia).
Baroness Howarth is a crossbench peer and CAFCASS board member. (wikipedia).
Lord Hunt is a a former health administrator and a labour peer. (wikipedia).
Baroness Evans is a conservative party peer, and leader of the House of Lords (wikipedia).
Interestingly, none of the people participating in this debate are lawyers.
FOOTNOTE 2: The 2012 Judgments – some extracts
From the first 2012 judgment, following the fact finding hearing leading to exoneration of Ben Butler :
(Extracts commence from para 697)
I have a sense that a process of ‘opening up’ has just started. Able now to admit to their relationship and [sibling’s] paternity must be a huge relief. Able to be free from the shadow of blame must be as big a relief if not bigger. They are going to change. There may be more they want to unburden themselves of. I think there is more to learn about them, their reaction to this Judgment, their ability to give priority to [sibling], their ability to co-operate with professionals. As the Guardian says there needs to be a fair and supportive assessment of them.
I need the context of their behaviour. On one hand it could be said they prioritised their own needs before that of [sibling], but I ask myself would that be fair to them knowing as I do the burdens under which they have laboured for 51⁄2 years. I think it might be much fairer for them to be assessed and for more information about them to be gathered before I make any final decisions about the Local Authority’s threshold allegations.
…Having said that I want the parents to know that ideally and optimistically I would like to see [sibling] returned to the mother’s care.
…I accept that the parents have no trust in the Local Authority. Any assessment or work to be done would be doomed to failure if it were to be managed by the Local Authority. The parents say they would work with an independent social worker and with the Guardian.
The Guardian proposes that there should be an assessment carried out by “Services for Children”, an experienced and well-regarded independent social work agency. I have had some experience of that organisation and am content they should be instructed. They can report by 12 September 2012.
The Guardian in her final submissions has indicated the issues which need to be covered by such assessment, and in the light of this Judgment:
(1) the various help, support and services that the mother, alternatively the mother and the father, will need to realise the reunification of [sibling] to her/their care – encompassing their emotional, social, financial and practical needs, including issues such as childcare and housing, and identifying the services that can best assist them in their care of [sibling];
(2) the appropriate timescale for reunification, to include the appropriate build-up of contact towards that end;
(3) the appropriate parental contact arrangements for Ellie, to include as an essential component of that assessment direct work with the grandparents and the parents to establish a common understanding of the findings and Judgment of this Court and its consequences for Ellie’s welfare, and with a view to repairing the fractured relationships between them;
(4) the appropriate inter-sibling contact arrangements for Ellie and [sibling], to include when and how they should be introduced.
I agree with those suggestions; there may be other matters which other parties would wish to add. A draft letter of instruction will need to be agreed.
I also feel that there should be some form of assessment of the mother’s emotional state, whether by a psychiatrist or psychologist. This needs to be considered by the parties.
I want all parties to recognise that ideally, and if it were possible and commensurate with [sibling’s] welfare and timescales that [sibling] should be reunited with [the] mother and [the] father as a supporter. [sibling] will be 3 in September. There is a real urgency for clear decisions to be made for [sibling’s] future long-term care and welfare. I hope to achieve that in September.
And from the second judgment, after the initial assessment by the independent social workers was carried out (a further assessment was ordered focusing on the how and when of Ellie’s return, as set out below):
Since the hearing in July and my Judgment in which I exonerated the father from injuring Ellie, and the mother from any culpability in respect of Ellie, a detailed assessment by Services for Children has been carried out to consider the placement of [sibling] with [the] parents.
That assessment has not revealed any concerns about the abilities of the parents to provide for [sibling]; rather it has shown a warmth in the relationship between mother and child, and the mother’s ability to empathise with [sibling]. It has also revealed an emerging warm relationship between the child and [the] father.
Services for Children are positive in their view that [sibling] should return to the care of [the] mother supported by [the] father, and have provided an outline plan for [sibling’s] early return.
The Local Authority has obviously considered that report and the comments about both parents. As a result they have decided to withdraw their allegations against the mother and additional allegations against the father, and no longer seek findings against the parents. That approach has been welcomed and supported by all parties.
I too have considered the report and welcome the Local Authority’s decision to withdraw their allegations. Indeed, although in July I adjourned that issue until this hearing, on all the evidence now before me I would have been hard pressed to make findings against the parents, and even more hard pressed to make findings against them that would cross the threshold required by Section 31.
…Moving on, the issue of Ellie’s future has been raised. Currently she is with her maternal Grandparents under a Special Guardianship Order.
…It has not been an easy time for the Grandparents either. They are retired, of mature years and not always in the best of health. Their application for Special Guardianship incurred them in considerable expense.
…Inevitably the Grandparents will have heavy hearts, but they have recognised the parents burning desire to regain the care of their little girl; they recognise that age and health are not in their favour; they do not wish “to fight” to keep Ellie; they want the best for her, and for them now to play a more back seat role in Ellie’s life: to be supportive, loving Grandparents. With this in mind they have accepted and agreed that Ellie should return to live with her mother, with [sibling] and with the support of her father.
It is a brave and appropriate decision, and one which I am sure the parents appreciate.
As a result it is agreed between the parties that Services for Children should undertake an assessment of how and when Ellie can be returned to her mother. Services for Children assessment over the Summer was focussed upon [sibling], it was not focussed upon Ellie, and work needs to be done to understand Ellie, her wishes and feelings, and to consider the mechanics of a return to her mother, while taking into account [sibling’s] own needs.
I am satisfied that this assessment and advice is vital to a successful reintegration of this family.
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