These are the notes of a talk given by Sarah Phillimore to the London Resolution group on 3rd October 2016. Further notes of the contributions given by Lucy Reed and Andrew Pack, along with discussion with the audience, will be available shortly on the Transparency Project website.
Sarah concludes that we all need to be aware of the dangers of confirmation bias and how much we need to tell ourselves stories to make sense of difficult and painful issues.
“Once free from the shadow of blame… they are going to change” [Hogg J]
The changing perceptions of the nature of Ben Butler.
“I was impressed by the father. He came through as a reflective, thoughtful individual who at times over-reacts through frustration. His manner can be seen by some as rude and aggressive but the mother says there is a much softer side to him. She saw the look of love in his eyes and face…” [para 626 Jmt Hogg J 2012]
“I can’t cope anymore.. woke up in a rage already… been in place so many times… My hands r shaking… One more mistake I am going to lose it.. ur pushing my hate…” [text message from Ben Butler on 19/10/13. 9 days later, he killed Ellie]
“My house is a bad house” [note taken by foster carer of what X reported]
“You are a self-absorbed, ill-tempered, violent and domineering man who, I am satisfied, regarded your children and your partner as trophies, having no role other than to fit in with your infantile and sentimentalised fantasy of family life with you as the patriarch whose every whim was to be responded to appropriately.” [Wilkie J sentencing Ben Butler in June 2016]
Why were such different views held about Ben Butler?
The dangers inherent in imposing our own ‘narrative drive’ upon the facts we know may lead us to ignore other facts or see them through the particular lens of our own confirmation bias.
“Good practice would suggest that when parents are considered to be threatening or hostile, any presumption that they are different with their children should be rigorously tested” [SCR 27/56]
“Hogg J denied as she was of the text messages and an understanding of the violence endemic in the relationship, found the evidence of both parents to be impressive and truthful. In fact what is now obvious is that both the mother and father were being untruthful about the nature and quality of their relationship” [para 48 jmt King J 2014]
The courts can only decide the case that is put in front of them. Accepting that principle, we need to be clear:
• What facts we put before the court – Judges can only decide the case in front of them.
• How those facts should be analysed – but Judges also bring their own interpretations to the facts
• And just how much weight the ‘balance of probabilities’ can bear – is it ever wise to ‘exonerate’ on the balance of probabilities?
• See further https://childprotectionresource.online/achieving-best-evidence-and-use-in-children-act-cases/
Some features of the evidence to consider
Paragraphs from 2012 court judgment
Seeing the case through a lens – ‘a tragedy for a loving couple’
para 51: ‘I have not read the judgments of HHJ Atkins dated 29th January and 28th April nor the summing up to the jury of HHJ Stow in March 2009 as I did not wish to be influenced in any way by another Judge of first instance’ [presumably therefore did not read psychiatric report ordered in February 2008]
NB No mention is made of findings that parents threatened MGP, other than to record that this finding was made.
Para 344: …’other than the injuries found in Ellie’s head [what about burns to head and fingers] …she was a well cared for infant …If that was the scenario, then there is no culpability, it was a reaction to a frightening situation and event’.
Para 507: while pregnant with Ellie’s sibling, the mother committed benefit fraud. [Does not mention other incidents of dishonest behaviour/evasion? Lack of analysis or knowledge of extensive background of criminal background and extensive deception]
Para 509: parents undertook ‘secret’ testing of Ellie’s sibling that confirmed Ben Butler was father of both; known since May 2010 and kept from lawyers. [Dishonesty/evasion]
Para 519: – mother and father did not live together. Saw each other a few times each week. ‘He is all I have’. [no analysis of clear vulnerability of mother and her dependence on Ben Butler]
Para 572: ‘He cannot say what the future holds for the relationship between the mother and himself. He could not commit to living with her’. [It appears the parents never lived together]
Para 618: ‘he accepted that in the past he had not co-operated with the LA … he accepted that he had not helped prepare the life story work for either Ellie or X when he should have. He accepted that he had criminal convictions in the past and more recently. He accepted he had made mistakes. [father’s account appears to be taken at face value]
Para 626: I was impressed by the father. He came through as a reflective, thoughtful individual who at times over-reacts through frustration. His manner can be seen by some as rude and aggressive but the mother says there is a much softer side to him. She saw the look of love in his eyes and face….[Mills and Boon have no place in court judgments?]
Note comment SCR 21/56 ‘In her conclusions the Judge works through the parents’ shortcomings and in many instances frames them in the context of being victims of a wrongful conviction and the difficulties they have suffered as a result and seems ready to accept their explanations for their unhelpful behaviour She states “I was impressed by the father” and refers to the parents “opening up” and states that once free from the “shadow of blame” “they are going to change”
SCR 21/56 – comments from IMR for Children’s Social Care: “[Mrs Justice Hogg] having decided that the medical evidence in respect of the injury to [Ellie] did not hold, then chose to ignore all the other evidence. She chose to dismiss the evidence of the parents’ hostile and non-co-operative behaviours and appeared to conclude that it was to be expected given that Children’s Services had removed their children.”
Which lead to failure to analyse the father’s prior criminal convictions and propensity for violence
Para 531: ‘[the mother] denied the LA’s suggestion that theirs was a relationship in which domestic violence, bullying and controlling behaviour by the father featured. She denied that he abused her verbally or physically’ [would be interesting to know how mother cross examined about this, particularly in light of father’s previous violent history as documented in probation records and in light of extremely disturbing diary entries from mother about what going on in 2012]
Para 587: [Fathers 999 call] ‘That’s when I put her…. And she fucking. I leant her back too quick. Fuck sake come on’. [No consideration of why he ‘leant her back too quick’ in light of his propensity for violent reactions]
Para 610: ‘Dr Haswell said he saw the parents arguing, the father poking the mother in the chest and forehead and being aggressive’.[This was glossed over, even portrayed as a ‘positive’]
Para 627: ‘he acknowledged his criminal convictions… I note the convictions include assaults on adults, not on children. I accept that he can act out of frustration… –
[contrast with what is said in SCR 5/56: ‘ In respect of [father’s] health: records describe a pattern of frequent injuries related to alcohol, assaults and fights as well as a history of depression. Police and probation records show a long history of offending, including a 3 year 11 month prison sentence for armed robbery with violence and witness intimidation, charges of ABH and an assault on a pregnant ex girlfriend. Many other alleged incidents did not proceed to court as witnesses alleged victims would not pursue a case against [the father]. He frequently breached community orders and failed to co-operate with Probation staff. He reported a history of being sexually abused as a child by a relative, had a history of self harm and was referred to psychotherapeutic help. [The father] appears not to have held employment for many years].
Exoneration – The action of officially absolving someone from blame
Para 488: ‘not finding an answer is not to me the same as saying somebody must have done it’ – If I may say, wise comments from a very experienced practitioner and one of which doctors and lawyers alike should take heed. [Just as not finding an answer does not equate to ‘exoneration’]
Para 659: ‘in fairness to all I should try to go further. Ellie and X when they grow up need to know with as much clarity as possible what happened to Ellie in February… [Just how much weight can ‘the balance of probabilities’ take?]
Para 660: the parents have suffered enormous loss as a result of the findings. If I can exonerate them from wrong doing in February 2007 I should do so. … Para 672: in my judgment he is exonerated from causing her any inflicted injury.
SCR 8/56: The Local Authority was required by the court to send a letter to all agencies who had worked with the family to inform them of [the father’s] quashed conviction and exoneration and directing that this letter should be prominently referenced in their files. It included the statement “[the Judge] concluded that not only was she satisfied that [the father] never caused harm to his child, in fact there was an innocent explanation for his child’s suspected injuries”.
Working on ‘balance of probabilities’ is such ‘exoneration’ ever appropriate? Simply say – no finding made. Why take next step to positive exoneration? ‘
Conclusion – Key finding of the SCR
SCR 19/56 Professionals who had read the [2012 Judgment] concluded that it handed all the power to the parents and did not leave ‘even one percent change that it might be different’. Given the known pattern of the parents’ behaviour – lies, aggression, threats, missed appointments, “disguised compliance” and resistance, one IMR author commented that: “the decision made that allowed the parents to dictate who they will and will not work with is extremely concerning practice that had a monumental impact for [Ellie] and all professionals involved and should be reviewed with courage and conviction to shape future decision making”
Ellie Butler Timeline
2006 Parents meet; by this time the father had a number of convictions of attempted robbery, intimidation of a witness and assault. Sentenced to 3 years in prison [2012 judgment para 11]
30.12.06 Ellie born. Parents in ‘casual relationship’ and were not living together. Ellie moved between parents’ homes.
07.02.07 Ellie suffers burns to her forehead and index fingers when in care of father. He claims ‘total accident’.
08.02.07 Ellie take to GP who did not raise child protection issues
15.02.07 Ellie in care of her father. Ellie was ‘soft and limp’. Ambulance called. Hospital found intra-cranial and retinal bleeding. Father charged with assault and cruelty.
Ellie had very unusual combination of laryngneal cleft and cyst at the back of her tongue.
27.02.07 Strategy meeting concludes Ellie’s injuries were not accidental.
05.03.07 LA issue care proceedings on basis Ellie had suffered inflicted head injury and burns in care of parents. [What was threshold criteria?]
09.03.07 ICO in respect of Ellie
16.03.07 Ellie discharged from hospital and in foster care.
24.07.07 Ellie moves to live with MGP under ICO. They apply for SGO
29.01.08 Findings of HHJ Atkins that father caused non-accidental injuries to Ellie and her mother failed to protect her.
Feb 2008 Psychiatrist instructed to report on both parents
March 2008 Mother had missed 13 visits to Ellie [SCR 7/56]
28.04.08 Findings of HHJ Atkins that parents had not been open and honest and had lied about their relationship. Both had intimidated and made various specific threats towards the MGP.
14.08.08 HHJ Atkins makes SGO to Ellie’s MGP.
24.03.09 Father convicted of assault and cruelty; sentenced to concurrent terms of 18 months and 1 month imprisonment.
May-Dec 2009 Mother had no contact with Ellie; she had gone ‘into hiding’ after becoming pregnant with Ellie’s sibling X.
07.09.09 ‘X’ born.
October 2009 Father released on bail pending appeal against conviction and sentence.
2010/2011 SCR 8/56 both [parents] were convicted of criminal offences, had numerous health problems (including [mother] having 16 hospital admissions in 8 months) and a poor record of contact visits.
07.02.10 Mother arrested for shoplifting: had young baby [X] with her
21.03.10 X removed from the mother by the police.
22.03.10 Care proceedings commence for X
May 2010 Parents conduct ‘secret DNA testing’ of X; confirming Ben Butler is father of both children. Parents do not tell their legal teams or LA, allowing others to believe that the children were not full siblings.
17.06.10 Father’s criminal convictions quashed. New medical evidence raised doubt as to safety of conviction. Mother seeks re-hearing of fact finding but legal aid is delayed.
Jan 2011 Ellie’s mother applies for re-hearing of fact finding, supported by father.
Feb 2012 MGP withdraw as SGO for X (at this time believing that they were not full siblings)
26.05.11 HHJ Atkins granted application for re-hearing of fact finding
Jan 2012 SCR 8/56 X had a period of serious illness but still [the mother] declined to visit.
08.05.12-06.07.12 Hearing before Mrs Justice Hogg
2008 findings of fact set aside – F exonerated. 1st long Judgment Hogg J (761 paras formally handed down in October)
NB note Para 696: 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’…
Summer 2012 Services for Children conduct assessment about reuniting X with the mother (parents still do not live together).
July-Dec 2012 Absence on sick leave of the second Children’s Guardian. Her work was not re-allocated or covered by her manager SCR 14/56
17.08.12 S4C interim report
13.09.12 S4C final report.
25-28.09.12 MGP confirm they would consider returning Ellie to the parents if it were in her best interests. Court hearing widened remit of S4C work to include consideration of returning Ellie to her mother’s care.
08.10.12 X returns to parents’ care
12.10.12 Judgments of Mrs Justice Hogg handed down.
Second short judgment (4 pages)  EWHC 2763 (Fam)
Services for Children are positive in their view that X should return to the mother’s care. The LA decides to withdraw allegations against the mother and additional allegations against the father. (What were they?)
‘on all the evidence now before me I would have been hard pressed to make findings against the parents’ [para 5] ‘the parents have weathered the storm. They have each been resilient and determined, and shown tenacity and courage. I hope now that the record is put straight, that with their tenacity they will be able to put behind them those difficulties and look forward to a more positive future’. [para 10]
Children’s Services to undertake assessment of how and when Ellie can be returned to her mother.
Care proceedings come to an end. Directions made in parent’s proposed application to revoke SGO.
‘The story does not end today. There is still work to be done. I very much hope that in the near future there will be another happy ending’ [para 22].
Long judgment (88 pages)  EWCH 2604 (Fam)
09.11.12 Ellie returns to parents’ care
Concern expressed by variety of agencies at the speed of this reunification.
SCR 10/56 It had been planned that during the first weekend in November that [Ellie]would spend extensive time with the parents including an overnight stay. This did not happen as the parents had moved to their new house but were without power, they had made themselves unavailable for any contact and S4C were unable to talk to either of them.
04.12.12 The mother attends St Hellier hospital with both children who were hungry and fed by a nurse. Mother was pregnant and wished to conceal this, leaving hospital in the early hours when told Children’s Services would be informed.
11.12.12 Final Review hearing.
Final orders. Residence order to Ellie’s parents with contact to MGP. SGO to MGP revoked.
05.01.13 Mother admitted to Chelsea and Westminster hospital. Gives false details and fails to mention existence of Ellie
08.01.13 Ellie not at school. Home visit ‘elicited an angry response from [the father] refusing to deal with Children’s Services [SCR 11/56]
28.01.13 Children’s Services hold professionals meeting and offered multi-agency support to parents but deemed insufficient grounds for statutory intervention.
27.03.13 Mother again admitted to Chelsea and Westminster hospital, again gives false information, denying she had children.
31.03.13 Police make several home visits; no concerns.
12.04.13 S4C submit report to Children’s Services. Report very positive regarding the development of the relationship between the siblings and commented parents had made shifts in their outlook.
April 2013 Ellie’s school continued to have concerns about her attendance, response of parents was ‘aggression, evasion and the cancelling of meetings’ SCR 18/56
May 2013 SW in MASH sends standard letter to the parents after being informed Ellie was missing appointments with a Consultant Opthalmologist. ‘This resulted in a very aggressive telephone call from [the father] followed by a formal complaint from his lawyer. [SCR 12/56]
June 2013 Ellie seen by GP with facial bruising and grazing; explanation of accident accepted. “During this period [the mother] was suffering from depression and receiving medication and [the father] was not complying with requirements from the Probation Service and was made subject of a suspended sentence” SCR 13/56
GP did not fully examine Ellie or refer this to Children’s Services. Comment that this did not meet expected safeguarding procedures [SCR 17/56]
28.10.13 Ellie dies. She suffered serious head injuries in the sole care of her father. At post mortem a fracture to her scapula was discovered. This would also have been caused by severe blunt force trauma.
She was five years and 10 months old. She had been in her parents’ care for just under a year.
28.11.13 Sutton Local Safeguarding Board (LSCB) began Serious Case Review into circumstances of Ellie’s death
11.03.14 Father charged with murder of Ellie and child cruelty. Remanded in custody.
27.03.14 Judiciary decline to take part in Individual Management Review for SCR: ‘For constitutional reasons it would not be appropriate…’ copies of judgments provided instead.
18.04.14 LSCB conclude SCR into Ellie’s death
22.04.14 Mother charged with perverting the course of justice and child cruelty. Remanded on bail.
06.06.14 King J (judgment dated 30.6.14)
Fact finding hearing re Ellie’s death in care proceedings for X. Court refuses application to re-open fact finding in relation to Ellie’s injuries in 2007.
Father inflicted force upon Ellie that caused fractured scapula and serious head injuries, which killed her.
Mother victim of serious domestic violence and in thrall to the father
11 Jun & 29 Jul 14 Reporting restriction orders made
April 2016 Father on trial for murder
14 June 2016 Reporting restriction order Bodey J (relates to identification of sibling)
21 June 2016 Ben Butler found guilty of murder and sentenced to life with minimum tarrif 23 years.
22 Jun 2016 Press apply for publication of King J judgment from 30 June 2014 – Pauffley J refuses. Press appeal.
Serious Case review published.
29.07.16 Judgment of King J finally approved for release by Court of Appeal – identifying information re sibling redacted (RRO in place)