Court decision left professionals feeling ‘powerless’ to protect Ellie

Serious case review into six-year-old’s death finds High Court judgement in 2012 had significant impact on how agencies could work with the family

Ben Butler with Ellie. Picture: David Crump/Rex/Shutterstock
Ben Butler with Ellie. Picture: David Crump/Rex/Shutterstock

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.

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15 Responses to Court decision left professionals feeling ‘powerless’ to protect Ellie

  1. Neil B June 23, 2016 at 11:33 am #

    Will there be a C4 expose regarding the mistakes made by the Judiciary in this case? Don’t hold your breath!

    • Andrea June 23, 2016 at 12:45 pm #

      and here we go again – somehow social services in the frame, judge a prejudiced fool and parents murderers – but our fault! I wonder if this will halt/stall the creeping privatisation………..

  2. Hilary Alexander June 23, 2016 at 12:49 pm #

    Was there a Children’s Guardian appointed in this case? I would have thought so but no mention has been made of her or him so we have no idea what view they held.

  3. Mary June 23, 2016 at 1:06 pm #

    Yup I was involved in this case and this judge should never ever have the power to speak on behalf of abused children. This child had been abused from a young age by this man and his lies led to her death. When will people stop thinking off Social Workers as bad people and start listening to what they say. We don’t remove children because we feel like it, we don’t get paid to remove children, we don’t want to destroy families we want to make families work. We know that children do better in their own families, we hate removing children, but we will refer to a judge if we think a child is being abused. Or the Police if we deem it an emergency. We don’t have the final say the police and courts do! I’m sick Ned tired of being being held responsible for actions we CAN NOT take. Yet little ones get hurt and murdered because people think we exaggerate the situation. We don’t, we can’t and we are held up to a legal process that checks everything we do. Shame the Social Workers in this case didn’t have any power to act. As usual! Despite knowing that this man was a bloody threat, but hey Social Workers are the devil incarnate. But if they had been allowed to act this child would not have died. Think on, people, think on.

    • Jen Ashby June 23, 2016 at 9:59 pm #

      Never a truer word said.

      • Cath K June 24, 2016 at 3:34 pm #

        Well said Mary, I can hear and feel your passion (in trying to protect) and distress in what should have been an avoidable tragedgy for this beautiful little girl and equally for those professionals who tried to say these parents are a risk to this child and whose voices were silenced and not heard…don’t give up, we need good good caring social workers like you…I would be keen to here from the Chief Social Worker/DFE and Ministry of Justice re the findings of this SCR

  4. Right to reply June 23, 2016 at 1:08 pm #

    How profoundly sad that a child has died and been mistreated at the hands of those who are meant to protect her, ie. parents.

    I found this article interesting in that there was clearly a responsibility linked to the Judge and the court decision for this case which exacerbated the overall situation for the worse. Is this going to be challenged by anyone? I am sure if it was the LA/Social Worker who had done something similar this would have been taken to task very publicly, including the outcome for said Social Worker. It isn’t about a blame culture before those of you jump at my view, but ensuring that things need to change to ensure something like this doesn’t happen again and the culture of undermining Social Workers needs to stop.

    The letter sent to Mr Butler would have certainly undermined the work trying to be undertaken by Social Workers, but my experience, especially of late, is that this happens a lot with regard to how some families are allowed to complain about Social Workers when they are not happy with what has been discussed with them or said about their care of children. I am the first to agree everyone has the right to complain where it is justifiable or the family genuinely has been treated badly or incorrectly and I would support any family if they had to do this by giving them a complaints leaflet. Where it falls down is when a Social Worker has raised issues from information that is factual or observed directly by them or other agencies/professionals/other family members, the carers/parents complain because this is part of their behaviour to undermine and not engage with services and then the complaint goes higher up the complaints ladder, even when the stage 1 is unfounded, or by making the complaint, some Senior Managers then ‘give in’ and offer re-assessment, etc. over several periods of time as the family complain about each worker (they all can’t be bad, can they???) further distracting from what is happening in the family, detrimental to a child. This undermines the Social Worker and possibly the team and gives out a message to said carers/parents which encourages them to launch into further attacks on the Social Workers. I say all this because I especially found the statement ‘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’ interesting. Isn’t this what Social Workers are trying to do all the time, but often find themselves challenging other agencies and professionals to achieve this, including their own line management.

    As a Social Worker I expect to have complaints made, especially if I have done a good job and ‘hit nails on the head’ so to speak, but the culture of complaining about everything does undermine good work and it is no wonder workers and Social Workers in Social Care statutory roles feel ‘useless’ and ‘ineffectual’ at times. Yes, we are dealing with a lot of vulnerable people and if they are under stress, etc. then again, they are likely to struggle to engage at times, but most do not try to ‘rampage’ through the system by distracting with complaints that are unfounded, but when they do this costs public money, time and feels awful as that worker or team.

    • Lesley Ann Abbott June 23, 2016 at 7:01 pm #

      You are absolutely right in saying that if this had been a local authority social worker there would have been a public outcry. It would again have been used to ‘bash’ social workers. As a retired Senior Social Worker I am appalled at the decision of the judge. I am further appalled because it seems that the independent social workers recommended that this child be returned to her parents. Therefore, I would address those independent social workers with the comment that there must be no collusion with parents and they must not be distracted by hostility and coersion. In my experience to have recommended that this child not be returned to her parents is likely to have been met by hostile behaviour. How easy to avoid any hostility and go along with the parents desires and no wonder they engaged with them. I do not think this applies to most social workers and I would not apply it to Sutton Council who it seems were dismissed by the judge. The fact that the parents are said to have distrusted the local authority, should have sent up multiple warning signs. Many times in my professional career I have faced hostility, threats to kill, avoidance, lack of engagement and complaints by some families. So many social workers face this every day and just stick in there. Were the independent social workers seduced by the parents into believing this was the right place for the child? Did the independent social workers listen to the wishes and feelings of this child?

  5. Carole June 23, 2016 at 2:20 pm #

    Tragic on all levels. Why wasn’t the child’s clear and expressed wishes listened to and understood by the judge??
    Appears that once the court ruling was imposed everyone became distant or not heard, cannot understand how this could have happened, surely safe guarding issues and concerns were still made…by the school, health etc???
    One judge effectively put a hold on all joint work and concerns? Tragic.

  6. Anita Singh June 23, 2016 at 4:21 pm #

    Yet another erroneous court decision. This is similar to the recent case in Bedford, where a young girl was placed in the care of her violent father, who murdered her as well. Given Mr Butler’s history and propensity for being a violent bully, how on earth did the Court reach a decision that it was safe to return this vulnerable child to his care. Oh of course the bar for evidence has become so high that it is no longer on the balance of probabilities but beyond a reasonable doubt.

    Of course there was no doubt about the rubbish local authority social workers who didn’t know what they were talking about did they? Far better to contract the work to someone more competent, a bit like the other case where the Independent SW was obviously so much more knowledgeable than the LA SW.

    What were the reasons that the judiciary declined to take part in the SCR or is such a process considered to be expected of social workers but beneath a High Court judge? Perhaps the British Courts should be answerable to the European Courts (that is if we remain of course) but if not perhaps they should answer to the UN Convention given the breach of Ellie’s rights. How do we ensure that a British High Court Judge is answerable for the decision that resulted in the death of Ellie? Should the European Courts bring a British Judge to a Judicial Review of the British Judiciary for the contravention of Ellie’s rights under Articles 3, 4, 6, 9, 12, 13, 19, 20?

  7. KD June 23, 2016 at 5:34 pm #

    This is a tragedy. I dont like to blame professionals because majority are just trying to do the best they can with the facts presented and the resources around them. Also the only people really accountable is the perpetrators, (actual ‘parents) in this case who allowed and carried out this awful crime.

    However as Social Workers are constantly held responsible by the press, society, absent parents/family etc then I would expect the Judge to be held responsible in this case. Along with the press including This Morning television programme who allowed this family air time to lie and blame everyone else but themselves. Where television programmes feel they can make money out of stories by attracting viewers then they need to be sure to research the facts.

    • Andrea June 24, 2016 at 5:30 pm #

      quite!

  8. MRG June 24, 2016 at 9:08 am #

    As Director of an IFA, I have lost count of the number of referrals I have read which reflect missed chances to help children and young people at risk. The two main reasons being refusal for funding and courts claiming threshold for orders have not been reached. A recent case where judge stated that threshold HAD been reached for one sibling, but not the other. Therefore both to remain at home with support. Those who know the case, know this will end with emergency removal at best.
    Courts should be answerable and it is appalling that neither the judiciary nor the independent social work agency contributed to the SCR. Either they feel guilt or (more likely) are contemptuous of the process and are happy to leave social workers out to dry and have no feeling for Ellie or her grandparents. Legislation should force them to participate!

  9. Wendy June 24, 2016 at 3:24 pm #

    I have been and now left social work after 30 years . There is a continuous undermining by other professionals and the legal professiond who do not value the input of the work social workers do. I am sorry to say heads of services and some managers have no back bone and will not support their workers when other professionals make life difficult .until thishappen things will not change,.

  10. Tim Barker June 25, 2016 at 9:02 am #

    This case highlights a serious failing in the Serious Case Review system, in that it is only the statutory agencies who are obliged to take part and submit themselves to scrutiny. As I found out some years ago while involved in a SCR, decisions taken by the court cannot be criticised in this forum. I would imagine that on legal advice, this Review went as far as it could in allocating responsibility where it lay, i.e with a wrong decision by the court. Equally worrying is that the independent social work agency chose not to submit a review and can not be compelled to do so. Where will that leave us in the brave new world of a mixed economy of private and not for profit agencies carrying out statutory work? This case raises issues which need serious consideration by the government, but I will not be holding my breath.