Professionals felt ‘powerless’ to act on concerns over a child’s safety after a judge exonerated her father of harming her and returned her to his care 11 months before he beat her to death.
The problem was compounded by the court’s appointment of an independent social work agency to work with the family, a move which “effectively distanced” local authority social workers from the case.
These are two key findings of the serious case review into events leading up to the death of six-year-old Ellie Butler. This week Ellie’s father, Ben Butler, was given a life sentence for her murder. His partner, Ellie’s mother Jennie Gray, was given 42 months for child cruelty and her part in a “cynical” cover-up of their daughter’s death.
Butler, who had a history of assault, was jailed for grievous bodily harm in 2009 after a court found he had shaken Ellie as a baby. The girl was taken into care by Sutton council and lived with her maternal grandparents. That verdict was later quashed by the Court of Appeal, and, in 2012, Butler won a High Court challenge to have Ellie returned to his and his partner’s care. Ellie, who has a younger sibling, was killed in October 2013.
‘Sense of unease’
Professionals and family members agreed the High Court judgment in July 2012 was key to events that followed, the serious case review found.
The judgment saw Justice Hogg overturn a previous finding of fact that Butler had shaken Ellie when she was just seven weeks old. The judge also ordered agencies to be sent a letter stating Butler “had never caused harm to his child” and there was an “innocent explanation” for Ellie’s injuries.
The review said the judge’s fact-finding decision, on balance, had “not been unreasonable” as it was based on experts’ medical evidence and weighed at length. However, it said the decision to order the letter exonerating Butler went “much further” than the finding of fact.
“According to many professionals it was this statement [the letter] that left them feeling ‘powerless to act’ despite their remaining sense of unease about the safety of [Ellie] returning to the parents.”
It added: “The impact of the court case gave a strongly empowering message to the parents and an equally disempowering message to professionals.
“Despite their best efforts and use of their professional judgement, when agencies were unable to find sufficient evidence to undertake a statutory intervention, there was little they could do in the face of parental opposition to voluntary engagement.”
This meant any intervention that was not agreed with the family would need to meet the ‘significant harm’ threshold, the review found. Evidence submitted by Sutton council’s children’s services said this made anything short of a child protection investigation “impossible”.
Council’s social workers ‘distanced’ from case
The agencies’ feeling of being “powerless or paralysed” was compounded by Justice Hogg’s appointment of an independent social work provider, Services for Children (S4C), to assess Ellie and work with the family. The judge made the appointment as she felt any attempted cooperation between the parents and the local authority would be “doomed to failure” given the history of the case.
This decision was “crucial” as it “distanced” Sutton council’s social workers from the case and left other agencies “disconcerted” as they were working with an unfamiliar service, the serious case review found.
“It is evident that both children’s services and S4C expected more communication from the other and this lack of a defined working relationship led to confusion such as who was responsible for informing other agencies about the plan of work, the progress towards it, the dates when the children would return home, and the outcomes of legal processes,” it said.
The number of agencies involved, the use of an independent social work agency, and the “extreme level of avoidance, deception and resistance” from the parents made the case “exceptionally unusual”, the serious case review concluded.
Christine Davies, Independent Chair of the Sutton Safeguarding Children Board, said: “We are all deeply saddened by the death of Ellie Butler. The death of any child is always tragic but more so in these circumstances. Ellie was harmed by her parents, the very people who were supposed to protect her and keep her safe.
“The serious case review concluded that the Family Court’s decision to exonerate Ben Butler of harming Ellie in 2007, combined with its subsequent order for agencies to be sent a letter to that effect, had a very significant impact on how agencies could protect his children from that point in time onwards.
“Ben Butler’s exoneration and the judge’s statement about him being a victim of a miscarriage of justice had the effect of handing all the power to the parents. This coupled with the assessment made by Services for Children [S4C] to support Ellie and her sibling to be cared for by their parents were critical factors.”
The review recommended professionals should not be “deflected or distracted” by parental behaviour when working with hostile families and should focus on assessing the potential risk to children of emotional abuse and neglect. It called for clarity regarding the roles and responsibilities of independent social work agencies and said local authorities should lead in defining how commissioning and communication is managed.
S4C did not submit an individual report to the serious case review. Justice Hogg and the judiciary declined to participate in the serious case review beyond providing copies of the court judgments.
The review authors said the lack of engagement raised questions over the responsibility of the courts and judiciary to contribute to SCRs. It said the matter should be considered by the President of the Family Court and the Family Justice Council.