Family Court in the Dock

Ellie Butler was 6 years and 10 months when she was murdered by her father in October 2013. The recent second inquest into her death concluded that 'despite various failings which were highlighted in the Serious Case Review and which will be addressed in a Prevent Future Deaths report, there was no evidence that any acts or omissions by the relevant agencies possibly or probably contributed to the death of Ellie'. This is very disappointing.

The issues raised by this case are ones that are not unusual in child protection cases and a deeper analysis of the reasons for flawed decision-making would have been helpful. It shows once again the difficulties for the child protection system in working effectively in situations where children are at risk but parents are hostile, evasive and keep agencies away. Social workers often appear to swing unevenly between the poles of authoritarian child rescue and deep unease about making decisive child protection interventions.

There are also issues about the operation of the family court. Sometimes the legal system, possibly driven by barristers with a narrow focus on the human rights of parents, allows the legal process to drag on far too long thereby reducing the options for a child in care who would then find a move very unsettling. Sometimes social workers find they are rendered powerless by the adversarial legal system and their efforts to promote the child's welfare are disregarded, as in the case of Ellie.

The background to this case can be summarised in the following way. The father of Ellie, Ben Butler, had been successful in 2010 in getting his conviction for grievous bodily harm for shaking baby Ellie quashed. Afterwards, he and the mother, Jennie Gray, mounted a high-profile publicity campaign to get Ellie back from her maternal grandparents who were caring for her under a Special Guardianship Order. The parents were very impressive in the way they presented themselves as a couple who had tragically lost a child due to a miscarriage of justice. They obtained a High Court hearing to reconsider the facts of the case and eventually their two children in care were returned to them.

Ellie had been cared for by her grandparents continuously for over five years of her life. Eleven months after being moved to her parents she died. On 21 June 2016 her father, Ben Butler, was found guilty of her murder and sentenced to a minimum of 23 years in prison. Her mother, Jennie Gray, was jailed for 42 months in connection with the case, after admitting perverting the course of justice, and both were found guilty of child cruelty.

Many of the difficulties for the local authority in managing this case arose out of the long-running legal battle in the High Court which culminated in a judgment that was insufficiently focused on the welfare of the child. The primary focus of the court was on the forensic examination of the extensive and complex medical evidence about the incident that had occurred when Ellie was a baby.

A key aspect of the case that has never been explained is why the local authority was unable to present a strong case to the judge, Mrs Justice Hogg, for a legal order to be kept in place. There were ongoing incidents that suggested the parents were not emotionally equipped to care for Ellie. The concerns about the parents were much wider than the shaken baby incident. The local authority had plenty of information about them, such as their entrenched patterns of violent and aggressive behaviour, their unstable relationship, their fierce determination to keep all agencies at bay and the fact that a younger sibling had suffered neglect in the care of her mother and was in foster care under a Care Order at the time.

The judge overturned the previous family court finding of fact and decided the existing legal orders were not upheld due to the threshold criteria not being met. However, she went further in exonerating the parents of all wrongdoing and ordered that a letter be sent to agencies stating the father had never caused harm to his child and there was an innocent explanation for Ellie’s injuries. At this point the court dealt with matters under private law proceedings and the local authority ceased to be a party to the proceedings.

The judge instructed the local authority to pay for an independent agency to carry out an assessment. Curiously, she framed this as an assessment of the parents with a view to rehabilitation of the children with their mother. The parents were living apart at that time. Children's services held a considerable amount of information about the family but this information was not actively sought by the social work agency, presumably because it had not been asked to carry out a comprehensive risk assessment. In due course both children were returned to their parents despite ongoing concerns about the home situation.

Many professionals then struggled to understand the continued level of hostility demonstrated by the parents after they had all their demands met and the children moved to live with them. Consideration could have been given to monitoring the children under a child protection plan at that time. Nevertheless, social workers did continue performing a surveillance role with the family but believed there were insufficient grounds to justify statutory intervention.

This case provides a vivid example of how the introduction of an independent social work agency caused confusion about the social work role and made a difficult situation for the local authority almost impossible. Furthermore, the removal of the legal orders left it unclear of its remit. Although there were other powers it could have used it seemed reluctant to make use of them, possibly due to the father's hostile and threatening attitude.

It can be hard for social workers to hold on to the idea that they have something useful to offer when faced with so much uncertainty and frustration when working with families such as this. Those who see the way forward as simply a matter of better training for social workers are deluded. Even the most skilled and knowledgeable professionals can be tripped up when confronted with parents who play the system and make frequent use of complaints and threats of legal action.

This case is a stark reminder of the dilemmas for social workers in trying to carry out their duties whilst also taking account of the rights of parents and the welfare of the child. Some think statutory social work runs counter to the general approach that has been developed by the profession over many years. There will always be debate within the profession about the appropriate emphasis on the social control function in social work. However, change will only happen when the profession recognises the inherent contradictions within the social work role and stops making social workers feel uncomfortable with the idea that children occasionally need rescuing from extreme cruelty and neglect.

Hilary Searing