Lessons from the Ellie Butler Case – Event on October 3rd 2016

Members of the Transparency Project will be speaking at an event organised by the London Regional Group of Resolution on October 3rd entitled ‘Lessons from the Ellie Butler Case’. The venue is Charles Russell Speechlys, 5 Fleet Place, London, EC4M 7RD at 6pm.

To register for a ticket online visit www.tinyurl.com/lonres3oct or send a cheque made payable to Magnus Mill Resolution (London), c/o Alexiou Fisher Philipps, 106-108 Wigmore Street, London W1U 3LR DX: 42720 OXFORD CIRCUS.Cost: £36.00 for Resolution and FLBA members, £26 for YRes members, and £46.00 for non-members (including VAT). The event will attract 1 CPD point.

Recently, some worrying anecdotes have come to the attention of the TP that the tragic repercussions of the Ellie Butler case may be influencing some local authorities to feel it is now incumbent on them to put all ‘concerns’  before a Judge in a finding of fact case, rather than advance a clear positive case against parents.

Therefore, we thought it worthwhile publishing an explanation of the ambit of ‘fact findings’ in the family court and clarifying the existing roles of the court and the local authority. It was such a hearing that determined for the purposes of care proceedings that Ellie’s father did not injure her when she was a baby and thus he did not pose a risk of causing future harm to her which would justify her remaining out of his care.  We now, sadly, know the reality of the risk he posed was very high. But ‘findings of fact’ can never be about a search for a ‘universal truth’ – they are subject to clear parameters and limitations.

Hopefully the conversation can continue on October 3rd and we will report back.

Why are ‘findings of fact’ necessary in a family court? Why not leave it up to the police and the criminal courts?

The family court is often asked to make findings in cases where children are badly injured and there is suspicion that it wasn’t an accident. Sometimes there are criminal cases running alongside on the same facts, but the criminal and family courts operate on very different timetables and the family court can’t always wait for the criminal court to get going or to finish – for example, there may be other children in the family who need a speedy decision about where they are going to live.

Or it may be that no criminal trial takes place at all, despite serious injury to a child, as the CPS have decided that the evidence/public interest test is not met to continue with criminal charges against the adults. But again, the family court needs to make a decision about the welfare of any children and where they should live. For useful discussion about the interplay of criminal and family courts, see our posts about the case of Poppi Worthington. 

‘Findings of fact’ hearings, are often separate hearings to any court hearing about who should be looking after a child. Sometimes the family court will make findings about factual disputes as part of an overall or “rolled up” final hearing. A separate fact finding hearing is usually necessary if there is a dispute between the local authority and parents about what has actually happened to a child upon which the outcome of the case is likely to turn, most commonly an apparently inflicted physical injury to a child.

The court can only make a care or supervision order in favour of a local authority if ‘threshold’ is crossed, i.e. there must be evidence on the balance of probabilities to show that a child has suffered or is at risk of suffering ‘significant harm’. In a case which has come to court as a result of the discovery of unexplained injuries to a child the power of the court to make a care or supervision order will often entirely depend on whether or not infliction or reckless injury to a child can be proved (or a failure of a parent to protect a child from being harmed by someone else).

A parent who deliberately hurt a child and who lies about it, is a much bigger future risk than a parent who hurt a child by accident. What went so tragically wrong in the Ellie Butler case, was that the ‘finding of fact’ found entirely the wrong fact – that her father did not pose a risk of future significant harm to her, as he had not injured her before, his previous convictions being overturned on appeal. The questions and issues posed by this case revolve around why the fact finding process failed to identify the risk Ben Butler actually posed.

What do we mean by ‘inquisitorial’ and ‘adversarial’ systems?

This underpins the crucial distinction between ‘inquisitorial’ and ‘adversarial’ hearings. The Judge in the Ben Butler case was NOT conducting an ‘investigation’ into the risk Ben Butler posed. The Judge was deciding the case that was put before her which appears to have primarily focused on whether or not he hurt Ellie when she was a baby. After the finding of fact, the court asked for independent social workers to report, by which time the local authority did not pursue any other findings against Ben Butler.

Wikipedia defines it thus:

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems. Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations.

Confusingly family cases are sometimes referred to as ‘quasi-inquisitorial’. What does this mean in practice? Use by some judges of this phrase ‘quasi -inquisitorial’ is intended as a reminder to the lawyers that we are all after the same thing – the welfare of the child – and thus the family court has little patience with theatrics or rhetoric from lawyers. Cross examination of witnesses must be conducted sensitively and sensibly, the goal being to determine what actually happened to a child and thus provide the court and the local authority with the best information about how to promote that child’s future welfare.

What does this mean for the role of the local authority and the judge?

Calling family proceedings ‘quasi-inquisitorial’ therefore does not mean that ‘findings of fact’ can be considered ‘inquisitorial’ in the sense that the Judge is in any way charged with ‘finding out what happened’. The Judge can only ever decide the case that is put before him or her by the local authority.

The basic rule is ‘he who asserts must prove’ (or presumption of innocence) so the local authority must put its case and if it seeks particular findings to support a particular order – for example: “this child was injured deliberately by this parent and a care order is needed”, with plan to remove the child from the parent – then it must set those out findings out sought clearly, in a schedule. The local authority will then seek to persuade the judge that on a balance of probabilities, what is set out in the schedule actually happened.

The local authority is therefore required to nail its colours to the mast. It doesn’t have to identify with absolute clarity a precise individual as one who caused a child significant harm; it is perfectly acceptable to say that there is more than one person who could have hurt the child and the court may then be asked to identify a ‘pool of perpetrators’.

What the local authority emphatically cannot do is say ‘we’re worried, but we don’t think we can prove it – so we would like to leave it up to the Judge to decide’.

Some hearings are inevitably going to be finely balanced and a local authority won’t be criticised for that either. But they must have a positive case to advance to support the findings that they seek. This is the very essence of the adversarial system. The parents are entitled to know what is the case against them, so they can provide evidence in rebuttal. The Judge must know what case it is that is being tried.

The role of the Judge is then to hear the evidence, evaluate it correctly and come to a decision. Findings in the adversarial system operate on a simple ‘yes/no’. It either happened – or it didn’t. There is no room for a judge to ‘find’ that something is ‘concerning’ but it is not possible to say one way or the other if it happened. The President of the Family Division described the Judge’s role in this way in A (A Child) (No 2) [2011] EWCA Civ 12:

After all, the purpose of a fact-finding hearing in the Family Division is to give the judge the essential factual platform upon which to build his further ‘welfare’ findings as he decides – as he must – what form of final order is in the best interests of his ward. Should the ward live with the one parent or the other, or perhaps with someone else in the wider family? Should the ward have contact with the other adults? If the guiding principle of law is that the interests of the ward are paramount (section 1 of the Children Act 1989), the determination in any particular case of what is in the best interests of this child necessarily involves an intense and anxious scrutiny of all the relevant circumstances. The task can often appear daunting even to the most experienced judge. And, as any judge who has had to conduct such fact-finding hearings will know all too well, wading through a mass of evidence, much of it usually uncorroborated and often coming from witnesses who, for whatever reasons, may be neither reliable nor even truthful, the difficulty of discerning where the truth actually lies, what findings he can properly make, is often one of almost excruciating difficulty. Yet as Baroness Hale of Richmond tartly observed in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS Intervening) [2008] UKHL 35, [2009] 1 AC 11, para [31], “it is the task which we are paid to perform to the best of our ability.”

Consequences of the binary system and the duty on local authorities to prove their case

This binary system can be pretty stark and some members of the TP have raised concern that for matters as serious as physical injuries to children, the simple binary yes/no on a balance of probabilities in an adversarial system, isn’t appropriate and should be replaced with something more akin to the criminal standard of proof or a more general inquiry into what happened. However, a more lengthy ‘inquiry’ or quasi criminal hearing carries with it the huge disadvantage of delay which can be very harmful to children and can lead to a greater risk that children will be left unprotected. Views are mixed about this within the TP and more broadly – it’s a difficult issue.

The duty on the local authority in these cases requires, as has been stated time and time again in various anxious judgments, clear headed analysis from the very start of a case. Judges can only decide the case that is put in front of them, so local authorities must consider carefully how they frame their case and what findings are sought. If the local authority fails to do this, Judges have made it very clear that it is not their role to ‘investigate’ vague or unparticularised ‘concerns’.

The local authority’s failure to properly analyse and present its case therefore carries two distinct but equally serious risks – that children may be unprotected from adults who may do them serious harm or that adults may be deprived of the chance to care for their children on findings that were not properly supported by evidence.

We hope that local authorities will not shirk from this essential task of analysis by the tragic repercussions of the Ellie Butler case. If the evidence isn’t there to make a positive case against a parent – it isn’t there. It is not the role of the Judge to determine what the local authority’s case is or should be.

And nor is it the role of local authorities to litigate or pursue findings in order to protect themselves against the risk of an adverse serious case review by passing responsibility for assessing risk to the judge.

For further reading about the demands of the adversarial fact finding process see this post from the Child Protection Resource.

See also our previous posts on the Ellie Butler case.

The Serious Case Review

The 2014 Fact Finding Judgment of King J – grim reading.