It is reported that the Senior Coroner responsible for the inquest into the death of Ellie Butler, first opened in November 2013 shortly after Ellie’s death, has decided to reopen the inquiry and potentially to call the High Court Judge who authorised her return to the care of her parents, as a witness.
You can read the report of that here : Ellie Butler family court judge may be called to ‘inevitable’ inquest.
In 2012 Mrs Justice Hogg exonerated Ben Butler of having harmed Ellie, after his conviction for doing so was quashed on appeal. In Family Court proceedings she subsequently authorised Ellie’s return home, having obtained expert evidence from a team of independent social workers. In 2013 Ellie was murdered by her Father. By the time of her death in October Ellie was not under any public law orders, and no child protection plan was in place. The independent social workers continued to work with the family until April, although they were by this stage reporting to social services rather than the court, since the court case had ended in December 2012. A recent report in the Guardian confirms that the Ellie’s grandfather has instigated a complaint against the independent social workers who were involved in Ellie’s case, and the HCPC (Health Care and Professions Council) is considering fitness to practice proceedings. See : Coroner could reopen inquest into murdered Ellie Butler.
Ellie’s parents were convicted in June this year for their part in her death. Separately, it’s also reported that the parents are launching late appeals against their convictions.
If you need further background, you can read our previous posts about Ellie Butler here.
It is usual where a criminal trial is likely to follow for an inquest to be opened and then immediately adjourned whilst the trial is ongoing. It is less common for that inquest to be re-opened once a criminal trial has led to a criminal conviction that answers the question as to the cause of death (here, murder by the deceased’s father, with her mother also implicated). However, because Ellie’s father had previoulsy been convicted and then exonerated of inflicting an earlier significant head injury on Ellie, this case has attracted an unusual amount of attention, and criticism has been levelled at variously : Sutton Borough Council, Mrs Justice Hogg and the independent social work agency S4C. The authors of the Serious Case Review into Ellie’s death complained that they had not been assisted by the Judicial refusal to engage with the Serious Case Review for “constitutional reasons”, and indicated that they would commence a dialogue with senior judiciary about that. The Guardian report suggests that dialogue is still ongoing.
The Guardian attributes a number of quotes from the Coroner, Selena Lynch, which make interesting and somewhat puzzling reading :
“My feeling is that the resumption of the inquest is inevitable because there has been a breach of the article 2 (of the Human Rights Act) duty to protect life,”
This might merely be poorly expressed (or perhaps slightly inaccurately recorded), but this is somewhat surprising, primarily because of the clear assertion that there has been a breach of Article 2 at a stage where the inquest has not really yet got going and has certainly not heard any evidence. Caselaw suggests that a Coroner should avoid giving the impression at a pre-inquest review hearing (PIR) that the findings and conclusions of the inquest are in any way predetermined, even when the evidence points substantially in one direction (Brown v. HM Coroner for the County of Norfolk  EWHC 198 (Admin)) (no BAILII link available).
The quote above wrongly refers to Article 2 of the Human Rights Act, where the correct reference is to Article 2 of the European Convention on Human Rights (the right to life). It is likely that the comments arose in the course of discussion at a PIR hearing rather than being part of any initial determination, so perhaps these instances of apparently sloppy phrasing are understandable, however it is surprising that the coroner did not take more care with her choice of words given the likelihood she would be quoted verbatim by the journalists who were evidently present.
An Article 2 type of inquest (sometimes called an enhanced or Middleton Inquest) is held where it is arguable that there has been a breach of Article 2 (i.e. it doesn’t have to be obvious or certain). Leaving aside cases where a person has been killed by the state (capital punishment) or in the care of the state (e.g. death in police custody), Article 2 is engaged where it is arguable that the state failed in its operational duty to protect life.
A coroner has very wide discretion as to the scope and conduct of an inquiry. See for example this guidance note no 5 issued by the Chief Coroner.
A Family Court Judge to be called as a witness?
Dame Mary Hogg (formerly Mrs Justice Hogg) the judge who dealt with the case in 2012, is now retired, but in theory she could be called as a witness as Coroners have very wide powers. It would however be very unusual (and probably unprecedented) for a sitting or retired judge to be called as a witness to give evidence about a court case that they had conducted. It’s not clear from the selected quotes we have from the article who raised the issue or what they or the Coroner had in mind in terms of the assistance that Dame Mary might be able to give.
On the possible involvement of Dame Mary Hogg, the article largely summarises rather than quotes :
…senior coroner Selena Lynch said the role of the family court played a key part in the case, and that the judge, Dame Mary Hogg, could be asked to attend….
She added that any investigation of the judiciary raised constitutional issues. She also highlighted the difficulty of a more junior court investigating a higher one. “How can I investigate a superior court?” Lynch asked.
“The coroner has the power to summon witnesses and compel evidence of investigations. The Ministry of Justice and Mrs Justice Hogg could be required to attend. There is nothing in law to prevent them from being required to attend but a judge would not be compellable,.”…[this means that they could be made to come to court but not to answer questions]
As far as involving the family court in the inquest, Lynch said she intended to write directly to the secretary of state and would invite Ministry of Justice to engage directly with the coroner’s court.
She added that there were ongoing discussions between the president of the family court, Sir James Munby, and officials involved with the serious case review into Ellie’s death.
It appears then that no decision has yet been taken on this issue, which is undoubtedly a tricky one. At the moment it seems that the Coroner is grappling with the proper scope of the inquest as she is expected to do at a PIR (Pre Inquest Review – a sort of case management hearing), and the reports she has ordered to be prepared by social services and the independent social workers are intended to help her work out what her next steps should be. She could conclude that it is either not necessary or not appropriate to call Dame Mary Hogg as a witness.
It seems very unlikely to us that the Secretary of State or senior Judiciary would be keen on the idea of a coroner conducting some sort of review of the Family Court process outside of the appellate process, for the same reasons that it was considered inappropriate for the judiciary to participate in serious case reviews. There is perhaps a distinction between participating in a SCR and a Coroner calling a witness, in that the calling of a judge at an inquest would involve the scrutiny of the exercise of judicial function of one judge by another through a judicial process – rather than some person or body outside of the judiciary. On a very basic level this is no different from one judge hearing an appeal from another judge, but of course an appeal is provided for by statute and is the conventional and sole constitutional mechanism for judicial scrutiny, and is always carried out by a judge more senior in rank to the judge being appealed from – it is not insignificant that an appeal from a Coroner lies to the High Court, which is the same rank as Mrs Justice Hogg. Hence, the coroner’s question “How can I investigate a superior court?”. This is particularly so where it is clear that a coroner will have a deal of respect for the decisions made in the Family Court, and will normally treat them as admissible rather than rehearsing all the evidence again (although as Guidance note 13 explains its actually quite a complicated area).
Does Article 2 apply?
What isn’t immediately clear to us (partly because it isn’t spelt out and partly because it isn’t our area of expertise) is how Article 2 is said to potentially apply in this case, or indeed what the judge has in mind when she says that there has been a breach. By which arm of the state? Social services? The judiciary? And in what respect – in particular is it being suggested that Dame Mary Hogg should be called to give evidence about her own conduct or alleged failures, or simply as someone who can provide evidence about what else was going on and what the court was told at the time? Depending on the answer to this question Dame Mary might be an “interested party”, which would give her status in the inquest to be represented, see documents and ask questions. But this is a long way down the road and at present is highly speculative.
All we really know is this :
The coroner added that the scope of the inquest would be wide ranging. As well as engaging with the family court she requested evidence from the social workers at Sutton council, the independent social workers from Services For Children (S4C) who supervised Ellie’s return to her parents, the two schools the child attended, her paediatrician, her GP as well as the two hospitals (Chelsea & Westminster and St Helier) where her mother, Jennie Gray, attended after violence from her partner, Ben Butler.
Lynch said she would be exploring systemic issues about information-sharing and recording, the framework of cooperation between independent social workers and the council, the lack of communication in relation to putting together the bigger picture in relation to Ellie and identifying the risk to her.
What will the Coroner do?
It’s important to remember that a Coroner’s court is not a court of blame. It’s task is to determine when, where and how a person came by his death and, where article 2 applies, to determine whether state agents failed to take adequate steps to protect life when under a duty to do so.
In this case those state agents could potentially include social services (and the independent social workers reporting initially to the court and subsequently to them), other agencies involved with the family, and arguably the judiciary / family court – but only if an article 2 duty still applied at the time of death. We don’t know what Sutton Borough Council said about this issue, but in other cases with some parallels Local Authorities have successfully argued that Article 2 was not engaged and that therefore this was not something that the inquest needed specifically to deal with.
In R (On the application of Kent CC) v. HM Coroner for Kent (NW District)  EWHC 2768, a 14 year old died of a methadone overdose taken unwittingly. Children’s services had been involved 9 months prior when he had made a suicide attempt. From that time he was having a range of difficulties. His school expressed concern about child protection issues, self harm and depression. His parents requested alternative accommodation for him. 4 months prior to death he was assessed as being a child in need under the Children Act 1989. A secure placement had been recommended for him. The LA attempted to find a 7 day respite foster carer but none was available. In that case the coroner ruled that article 2 was engaged but on appeal the High Court disagreed. The child was at risk of harm, but there was no real and immediate risk to life, and social services had no actual or constructive knowledge of a real and immediate risk to life. This meant that there was no operational duty in place and thus no scope for an article 2 inquest.
Drawing a parallel from the Kent case, it would have been possible for Sutton to argue that Article 2 didn’t apply, since Ellie was not a subject of court proceedings and was not in receipt of any statutory services in the months prior to her death – however, since Ellie was still on Sutton’s child protection “radar” after the conclusion of the court case and they made decisions not to intervene, this argument is probably stronger in relation to the court than it is in respect of social services. It is possible that the Ministry of Justice will say in due course that there was no ongoing Article 2 duty on the part of the court once proceedings had concluded, because the court had simply no jurisdiction i.e. no power to do anything in the 10 months prior to Ellie’s death, and no knowledge of what was happening. The alternate view is that there is some continuum or sequence of events that runs through the proceedings and continues to impact on the behaviour of “the state” towards Ellie in the months that follow. Realistically, if the Inquest is to be a full Article 2 inquest it will have to explore these issues through evidence rather than pre-judging any issues about how the different arms of the state interacted (or didn’t).
However, regardless of the parallels between the Kent case and this, and regardless of our hypothesising or any objection Sutton may have raised to an article 2 inquest (and we don’t know if they did) it appears that the Coroner has a clear view that Article 2 was not only engaged – but also breached. The coroner would have to find that those failures caused or contributed to the death as if causation is not established then the coroner / jury shouldn’t make any conclusions or findings in this regard.
The quotations read as if the Coroner may be rather hoping that a minister will announce a public inquiry and save the day, but she has no power to order one. We expect to hear more probably around the end of January or into February.
Other interesting issues to keep an eye open for are the possibility for arguments about disclosure of documents held by the LSCB arising from the Serious Case Review. The Worcestershire case tells us that disclosure of Independent Management Reviews and other documents referred to but not included in the published Serious Case Review summary, can be sought by a coroner, but those documents will be less likely to be disclosed to the public. Given the significant media coverage of this case, it may well be that the press would argue at some point that there was public interest in the release of documents of this sort – the outcome of any such argument is impossible to predict. A contrary argument is that any such disclosure could hamper the open participation of individuals in Serious Case Reviews or in the coronial investigation and therefore could impact the value of those investigations.
EDIT – Coroner’s Verdict given on 10th April 2018
The inquest concluded on March 23rd 2018 and the coroner found that Ellie was unlawfully killed but that the evidence did not support a conclusion that any acts or omissions by relevant agencies probably or even possibly contributed to the death of Ellie. Steven Atherton of S4C, gave evidence saying: “We were part of a system that failed this little girl”.
We are not aware that the verdict and reasons have been published – if we find any further details we will update this post accordingly.
However the coroner did order a ‘Prevention of Future Death Report’. Paragraph 7 of Schedule 5, Coroners and Justice Act 2009, provides coroners with the duty to make reports to a person, organisation, local authority or government department or agency where the coroner believes that action should be taken to prevent future deaths. All reports (formerly known as Rule 43 reports) and responses must be sent to the Chief Coroner. In most cases the Chief Coroner will publish the reports and responses on the Courts and Tribunals Judiciary website.
At the time of writing [April 23rd] no report has yet been published regarding Ellie’s case. If we find any more detailed reports of the inquest, we will update this post accordingly.
With thanks to Emma Zeb of St John’s Chambers for guidance on where to look for Coroner’s Court info – all errors our own though!
Feature Pic : Coroner’s Court – courtesy of Kimli on Flickr – thanks!