This is not intended to be an overview of what happened, what went wrong or what I think about the Ellie Butler murder. This is just me sharing some information that the media have neglected, for whatever reason, to foreground or include in their narrative of this case. An explanation of why I’ve not been able to do so before is here. The information I’m going to give you is information available to and in the hands of the Press, but not to the public at large – the Judicial Press Office have confirmed that they have been providing copies of these judgments to the press on request, and it is clear from many articles I’ve read that reporters are referring to and drawing from these judgments where they choose to do so. You may form your own view about why these things do not have more prominence online and in print.

Firstly, by way of preamble, it is apparent from the judgment that it took from June 2010, when the father’s appeal against conviction was allowed, until May 2011 for the mother to secure a rehearing of the findings. There seem to have been a number of reasons for this, but it is recorded that the Local Authority opposed the reopening of the findings in light of the quashing of the conviction (The court of appeal judgment on the appeal can be found here : Henderson v R. [2010] EWCA Crim 1269 (17 June 2010) (its a conjoined appeal so shows with a different case name and no one can ever find it). A very compressed summary of it is that the opthalmological evidence presented on appeal, confirmed unusual resolution of the retinal haemorrhages which gave rise to doubt whether in this case the presence of the “Triad” was the result of shaking or the result of an unknown cause). Once it was agreed the rehearing would happen it took a further year.

Secondly, the threshold. There has been much speculation as to the extent to which the focus was too honed in on the injuries without adequate consideration of broader issues.

The SCR says that Mrs Justice Hogg “required” the LA to send to agencies a letter which stated :

[The Judge] concluded that not only was she satisfied that [Mr Butler] had never caused harm to his child, in fact there was an innocent explanation for his child’s suspected injuries.

The judge’s actual words of exoneration are in her first judgment :

I do not blame him for causing injury to Ellie, while I accept that he may have done so with all good intention to help her.

I hope everyone will accept that I do not attach any culpability to him, and that in my Judgment he is exonerated from causing her any inflicted injury. If, in fact, he did cause her injury it was purely accidental.

It is clear from the context that the judge is referring to the injuries she has been dealing with rather than any broader canvas at this point. It can be easily seen that the letter is not an accurate transposition of the actual findings. The judge does not exonerate the father of causing any harm to his child. She expressly states he may have injured her, albeit innocently. Harm is broader than injury. “Never” is a further broadening of the exoneration. The injuries were not suspected but actual injuries. This stuff does matter. The letter suggests that the father is blameless in a broader sense than the judgment, whilst the judgment rules only on specific injuries. I can see how this may have contributed to a professional view that the father was teflon coated, although it can never have prospectively exonerated him of subsequent abusive behaviour. I would be interested to know where this inaccuracy crept in. I doubt it was a letter dictated by Hogg J herself or that she would not have seen the points I have raised. Instead I surmise it is a poor transposition by the writer of the letter. But we don’t know. My guess may be wrong. I note however, that the author of the SCR, Marion Davis, is reported as telling the guardian that the judge “permitted” the letter to be sent, which is materially different from the SCR. I would hazard a guess that the parents’ legal representatives may have suggested this. It is something I have suggested where my client has been wrongly accused of something and cannot weedle out all those prejudicial references on the file that keep coming back to haunt him or her.

This incidentally is the flip side of the phenomenon where someone “alleges” something about a person, and it gets repeated and repeated and morphed and firmed up across documents and across years and it will not go away. This is the effect of an unsubstantiated allegation or record of suspicion – it can often be revived again and again and is very damaging for parents who have done nothing wrong. It is this phenomenon that I suspect any letter was directed at – a legitimate aim in itself. The issue is with the wording, and we have no real sense of where that went wrong from the SCR. There is no reference to a letter in the judgment, but it is apparent that there was a hearing in December 2012 in respect of which we have no judgment (probably there is none as matters were dealt with by consent).

The exoneration judgment begins with a passage about threshold. I can’t set it out in full due to reporting restrictions (I’ve done my best below) but it makes clear that broader threshold findings were being pursued at that stage, which can be broadly categorised as a risk of emotional harm arising due to failures on the part of both parents but primarily the mother to cooperate / to be open and honest with the local authority.

In addition the Local Authority further state that [the younger sibling] is at risk of suffering emotional harm [in the mother’s care]  in that she has failed to show commitment and consistency towards contact, and had failed to co­ operate with the Local Authority, being secretive about her health, her contact details, employment and other aspects of her life which would be relevant to her having care of the sibling. The threshold document was amended towards the end of the hearing to include further matters which had been disclosed by the parents during their evidence, including concealment of the true facts surrounding the siblings birth and paternity, and the father’s involvement with [the child] before she went into care.

The threshold as such only applied to the younger sibling, since Ellie was by this stage already the subject of a final Special Guardianship Order made at the time of the original findings. Much of the remainder of the judgment is devoted to the rehearing issues : the evidence and conclusions in relation to the physical injuries to Ellie, the exoneration. But the Judge does record that she heard evidence from the LA and parents on these other threshold issues, including allegations of domestic violence within the relationship – denied by both parents but not ruled upon. Unusually, having heard evidence, the judge took the view she was not in a position to evaluate whether the dishonest and other behaviour of the parents (which was in large measure admitted) was sufficiently serious to cross the threshold. Mrs Hogg J at the conclusion of the first judgment is openly pondering how much of the parents’ behaviour is a product of having been wrongly accused of harming their daughter over a period of 5 ½ years. She is clear she holds concerns about the other issues raised by the LA, sufficient to warrant a delay in the proceedings before she makes her mind up. She says this :

I am not yet satisfied that those concerns bring me over the threshold criteria. I do have significant concerns and I wish to know more about the parents. They have carried an intolerable burden for the last 5 ½ years. They have lost one child. To them the father was unjustly accused, findings made, tried, convicted, and his conviction quashed; and their child wrongly removed from them following the findings. He has been treated and looked upon as a child abuser: they have felt persecuted and pried upon by social workers. They have not felt free from outside pressure….

This passage gives us some important background then to the much criticised independent social work assessment. It was proposed by the Guardian, who we now know subsequently went off sick, meaning there was no opportunity for the guardian to work either with the family, or for that Guardian to oversee or troubleshoot the assessment. The agency were known to the Judge (and it seems counsel for the Guardian who was earlier this week shown giving a warm testimonial on their website). Having concluded that the father had been wrongly held responsible over many years of harming his daughter, the Judge attempted to see the parents’ behaviour in light of that wrongful conviction / blame. This is entirely logically consistent. It also tells us that whilst the intention was for the father to be around, it was not at that stage the plan for him to care for Ellie. By the time of Ellie’s death he was living in the home.

The passage in the SCR (page 8) which says that :

After the conclusion of the court hearing [the exoneration hearing] the children were not subject to any orders, and childrens’ services did not have a formal role with the family as the court had found that the threshold criteria were not met.

is not accurate. Proceedings concluded, one child was accommodated under s20 and the judge had specifically adjourned the question of the threshold findings. Ellie had not been under any public law order since prior to the making of the SGO back in 2008 so this represented no change. This error re threshold is also repeated at page 20.

By the time of the later 2012 judgment, Mrs Justice Hogg says this :

The Local Authority has obviously considered [a positive independent social work assessment] 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.

There is therefore evidence heard on domestic abuse, but no ruling is ever made on that evidence. The other matters in the threshold (the emotional harm arising from dishonesty type issues) were not factually contentious, but the judge’s clear indication was that in light of the assessment and seeing the parent’s behaviour in light of the miscarriage of justice that at that stage was thought to have happened, their behaviour did not cross the threshold – because it did not give rise to a risk of future harm now the miscarriage had come to light. That’s my reading of this passage. It is difficult to form a view about the soundness of this decision at the time. We know that it was not opposed by any party (the grandparents were not parties), and that apparently the assessment of the parents was positive – but we do not have that assessment and as such cannot see how thorough it was. And we do not know how much active scrutiny of it was provided by the Guardian (the SCR suggests this was limited / insufficient – page 14).

It is interesting to see this question and answer in the SCR :

Why was the judge so ready to accept the parents explanations, and to believe, once exonerated, that they would change?

It is difficult to respond to this question in the absence of any analysis that would have come to the SCR if there had been involvement from the judiciary or Courts’ Service via an IMR or attendance at the SCR Panel. [page 35]

In fact, to my mind the answer seems to be in the judgments of Hogg J. She was not ready to do so without expert assistance because she held significant concerns about it. She commissioned the assessment from the independent agency precisely because she wanted to know how confident she could be on this “future risk” aspect of the case, and wanted to test her hypothesis that past behaviour was largely a function of the climate of suspicion and wrongful blame. The assessment appears to have confirmed the judge’s provisional view that if the miscarriage were righted the matters of concern would resolve. I’d very much like to see that assessment. It is apparently not an assessment that any party or person challenged. Why was that?

Thirdly, with reference to the widely reported claims that Ellie’s grandfather (for whom I have immense sympathy) had warned the judge against returning Ellie, saying she would have “blood on her hands”. This report in the Independent is typical but there are many others :

The judge who decided to hand Ellie Butler back to her violent father,was warned: “You are going to have blood on your hands”.

Ellie’s maternal grandfather Neal Gray, who had cared for her since she was a baby, had strongly protested against the move made by Mrs Justice Hogg to award custody to her parents in the family division of the High Court.

Within months, his worst fears came true when Ben Butler killed his six-year-old daughter in a fit of rage. [my emphasis]

The clear import of the narrative that is driving this sort of media report is that the judge was warned by family members, but ignored the warnings – and that the grandparents resisted the return of Ellie. In fact, whilst it is recorded in the SCR that there was hostility to the proposed move from the grandparents during the assessment, the second of Mrs Justice Hogg’s judgments from autumn 2012 records that :

Both the parents are hugely grateful to the Grandparents for stepping forward to care for Ellie, and providing her with love and stability over the last 4 years. It has not been easy for the parents to know that someone else was caring for their little girl, but they know and appreciate that but for the Grandparents she would have been adopted, and lost to them. Without the Grandparents we would not be discussing Ellie’s future today.

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 [the grandmother has subsequently passed away, having suffered from cancer]. Their application for Special Guardianship incurred them in considerable expense. But, despite their own personal difficulties they have provided well for Ellie, and are devoted to her.

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 [the younger 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. …work needs to be done to understand Ellie, her wishes and feelings, and to consider the mechanics of a return to her mother…I am satisfied that this assessment and advice is vital to a successful reintegration of this family.

Thus … I am making directions in the parents’ proposed application to revoke the Special Guardianship Order. [my emphasis]

It is difficult to be too firm about how precisely this records the grandparents position, but it is reasonable to assume it correctly records that the grandparents by this stage did not actively oppose the return of Ellie to her parents. They were not parties and were not represented, and it is not clear if they were present and articulating their views, or if their views were reported by the local authority in their absence, or perhaps in their presence but on their behalves. Perhaps they had written a statement that these words are drawn from. At any rate, one can easily imagine that the grandparents may have agreed reluctantly, perhaps seeing the writing on the wall, perhaps feeling that the LA were capitulating by withdrawing their threshold allegations, no doubt the grandmother’s ill health and the financial pressures played a part. Alongside that the sibling was due to be returned to the care of the parents, a child that the grandparents had acknowledged they could not care for. Whatever the precise explanation this record of agreement is at odds with many media reports and the account given by the grandfather himself. It is easy to see that he may now bitterly regret not feeling able at the time to fight this decision, but fight it he did not. I feel for him. I don’t know when the “blood on her hands” remark is said to have been made to the judge, but it doesn’t appear to have been made at this important turning point, and he was certainly not “protesting strongly” at this point in time.

There are so many things I could write about this very sad case. Things have of course gone wrong, that is easy to see. More difficult is identifying how things could be made to work better in future. That of course is the most important thing and I would not want it to get lost in the melee.

When an article in the Guardian was published last week entitled Ellie Butler judge ‘took unwarranted steps’ to reunite her with violent parents – Mrs Justice Hogg criticised by case review for ‘extraordinary’ decision to return child 11 months before father beat her to death, I had not fully read the SCR, but I immediately said the accusatory tone was unhelpful. I would think that some may take a different view of the following matters in light of some of the things I’ve drawn out above. I don’t suggest there can or should be no criticism of the judiciary, but I do suggest we need to drill down a bit more before pointing the finger :

Marion Davis, a former president of the Association of Directors of Children’s Services, said: “I think the crux of the matter rests with Mrs Justice Hogg. The extra steps she took were unwarranted.”

She singled out for criticism both the judiciary and the two private social workers at Services For Children (S4C) Hogg appointed in place of social workers from the London borough of Sutton who had fought Butler’s campaign to get custody of his daughter.

The serious case review investigating what went wrong in the period before Ellie’s murder does not condemn the social workers at Sutton council, who consistently opposed her being returned either to her parents or the school and health professionals involved with her care.

Significant criticism is directed at Hogg, however, whose decision to send Ellie back to her parents was described by Davis as extraordinary.

“She [Hogg] gave permission for a letter exonerating Ben Butler of causing any harm to Ellie to be circulated to all agencies and said he was victim of a miscarriage of justice,” said Davis.

She said serious questions had to be asked about Hogg’s decision….

“This is the most extraordinary element of the whole case. To say it’s surprising is an understatement, it’s an extraordinary step to take. Once that court judgment from Mrs Justice Hogg was in place there was virtually nothing that could be done to affect the outcome for Ellie.”

I have written elsewhere about the constitutional reasons for the judiciary not participating in SCRs. Sadly, this approach makes it all too easy for them to be blamed in their absence, and so it is particularly important that their judgments, the core record of their work, are both publicly available and fully and accurately reported. I don’t think that has happened so far.