We have previously written about the tragic case of Ellie Butler a number of times on this blog :
Lucy Reed also wrote a post on Pink Tape called What Price Transparency? about some of the difficulties she faced in reporting this case.
As each piece of new information emerges our perspective shifts. Today an appeal judgment from the Court of Appeal was published, explaining why a primary judgment of Mrs Justice King from 2014 should now be published : C (A Child)  EWCA Civ 798 (29 July 2016). The Court of Appeal decided that a decision earlier this year blocking publication of the 2014 judgment was wrong, and preferred the public interest arguments in favour of publication over suggestions that there might be a risk of prejudicing any criminal appeal that Ben Butler or Jennifer Gray might launch against their convictions (news reports today suggest Ben Butler has applied for permission to appeal). You can read Suesspicious Minds’ blog post explaining that appeal decision here : Ellie Butler Court of Appeal overturn decision to keep family court judgment from press.
The 2014 judgment is one we have known about for some time – the fact that its publication was being withheld has itself been reported. From that coverage it has been possible to work out that the judgment must have related to a sibling of Ellie’s (Ellie was by then dead, the court can have been performing no other function than the protection of a sibling) but we did not know exactly what went on in that case. Now that the Court of Appeal has ruled the 2014 judgment has been made available (although it has yet to reach BAILII, we have managed to secure a copy) it is possible to gain a clearer picture of this case, with the benefit of hindsight.
The 2014 judgment is lengthy and detailed and very distressing to read. It contains graphic descriptions and language. This post merely attempts to summarise it. [Update
We will publish a link to it on BAILII when it becomes available. You can read the judgment here.]
From the judgment we can see that :
- The case was about long term plans for Ellie’s younger sibling, who had been removed from his/her parents’ care around the time of Ellie’s death.
- Ellie’s sibling was subjected to physical and emotional abuse
- There was a background of really very severe physical and probably sexual violence perpetrated by the father on the mother
- Post mortem evidence tended to suggest that the original injuries suffered by Ellie had, after all, been the result of a shaking injury. Had that post mortem evidence been before Mrs Justice Hogg in 2012 she might well not have concluded that the father should be exonerated (and likewise in terms of the evidence of domestic violence). King J was asked by the siblings’ guardian to reopen (again) the findings that the father was NOT responsible for the original 2007 injuries – but the judge declined, saying that this was not necessary / proportionate to resolve the case about Ellie’s sibling – clearly the other matters, in particular the death of Ellie surpassed the earlier injuries and were enough in themselves to form the basis for a decision that Ellie’s sibling was not safe at home.
- The family judge was satisfied to the criminal standard (satisfied so she was sure – often described as “beyond reasonable doubt”) that the father had inflicted the injuries that led to Ellie’s death, and that he had caused a fractured scapula.
- The father refused to cooperate with the family court process, and when the judge threatened to use its powers of compulsion to require him to give evidence it was said the father would not answer any questions. Latterly the mother also refused to cooperate. The judge characterises the fathers behaviour in the course of proceedings as controlling.
- The judge describes a “highly dysfunctional and abusive relationship” and says that this was “on any view, a very challenging rehabilitation programme, albeit carried out with the assistance of an Independent Social Worker” (pa 51). Others have called for publication of the ISW reports in this case – it would certainly be very illuminating to see their perspective on things at the time.
- Ellie’s sibling is recorded as saying to his/her carer that “”my house” is a “bad house”” and speaks of his/her father hurting Ellie and mummy
- A probation report prepared not long before Ellie’s death described him as medium risk (BBC news report tonight that Sutton the Local Authority assert this was not shared with them at the time)
- The mother was significantly implicated in covering up Ellie’s injuries
- The text messages passed between the parents and other electronic records were significant pieces of evidence in building up a picture of what was going on in the home and the state of the parents’ relationship
- There was a range of other significant forensic and eyewitness evidence – of the location of the various family members’ blood around the home, of the parents’ movements and behaviour around the time of Ellie’s death etc.
- The judgment describes the Grandparents’ position being that they had cooperated with reluctance with the rehabilitation of Ellie to her parents’ care, but after Ellie’s death had not felt able to put themselves forward to care for her sibling.
- The copy of the judgment we have is redacted and annotated by hand by Lord Justice Burnett, one of the Court of Appeal judges. This appears to reflect the urgency with which the redaction was carried out given the very obvious public interest in this information becoming available. There will probably be some small delay before a redacted copy is made more widely available with the redactions done electronically.
In due course we will probably write about this judgment in more detail. We will cross link posts
and will add a link to the judgment when available.