Ellie Butler Case

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The Law Of… keeping children safe

On 28th October 2013, Ben Butler murdered his 6 year old daughter Ellie, striking her head hard enough to inflict catastrophic skull and brain injuries.

Protecting children and keeping them safe

Partner in Family Law, Paul Foster, explains what such a tragic case means for the law and the protection of children.

A Tragic History

The tragedy of this case comes in the fact that it could have been prevented. Ben Butler and his wife Jenine had a string of incidents stacked up against them, all of which did not point to their family being a safe and happy environment to bring up a child.

  • Earlier in October 2013, Butler had repeatedly assaulted Ellie and did not seek medical treatment for her
  • In 2007, when Ellie was 10 weeks old, she was removed from her parents’ care and placed with her maternal grandparents for 5 years
  • In March 2009 Butler was convicted of causing Ellie grievous bodily harm and imprisoned for 18 months
After a series of convincing stories from both parents – Butler was acquitted of grievous bodily harm and released in June 2010. It appeared that the child care system had wrongly removed a child from her innocent parents’ loving care.

In 2012, the parents’ application to get Ellie back from her grandparents was heard by Mrs Justice Hogg - who concluded that Ellie’s parents had done nothing wrong.

Ellie was to be immediately returned to their care.

We now know that at the end of the trial, Ellie’s grandfather prophetically shouted at the Judge that one day she would have "blood on her hands".

Family Court Decision Making

The law of the land requires the court to make the child’s welfare its paramount consideration – what is best for the child trumps all else.

  • In any case such as this, a checklist of factors is given that must analyse the welfare of the child. That checklist is applied to the facts of the case, and where disputed, the facts have to be decided by the court on the balance of probabilities
  • English law is "binary", meaning that if the judge is more than 50% sure that something happened it is considered to have happened, if the judge is less than 50% sure then it did not happen
This test has been considered by the Supreme Court on several occasions; it has its critics who say it is at odds with normal human behaviour and supporters who would not keep children from their parents on the basis of rumours or speculation.

We cannot say how exactly Mrs Justice Hogg reached her decision to let Ellie go home, especially as the transcript of the judgement was removed from the public domain.

Despite this, many of the most informed commentators found her judgment detailed, thorough, and compassionate.

How Should Blame Be Placed?

The trial was undoubtedly a fair one; the judge heard from all witnesses, and both parties had seasoned and very senior lawyers representing them. It is a tragedy that the ultimate decision to return Ellie led to the death of an innocent child.

Paul Foster comments:

"We must talk about Ellie’s tragically short life with humility; reflecting on what went wrong is a luxury denied to her. For whatever reason a terrible mistake was made, a child’s life has been lost."

  • The only people responsible for Ellie’s death are her father and to a lesser extent her mother. They abused and killed her, or colluded with her abuse, the system did not
  • Human beings, even the cleverest, kindest and most experienced are fallible. Mistakes will always be made
  • Nevertheless, the best way of making decisions is on the basis of robustly tested evidence. This entails the parties having the resources to get that evidence and instruct competent lawyers to test it
"There are no easy answers, but there are well evidenced pointers of the way ahead. This is desperately serious and important work. All who participate in it shoulder awesome responsibilities. All who comment upon it would do well to bear that in mind."

"Child protection is important - social workers, medical experts, and judges need to be properly trained, managed and resourced."

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