Protecting children in the Family Court is a harrowing task. Small lives rest in the balance of welfare reports which are not always good enough, cross examinations which can fall far short of exposing the truth and more often than we would like, judicial instinct, or discretion which we know is affected by bias.
The death of Ellie Butler, whose father Ben Butler has now been jailed for her murder, is a terrible story which highlights some of the ongoing difficulties with family law cases. That there is anger being directed at the judge who handed Ellie back to her parents after a prolonged custody battle is understandable but it doesn’t capture the wider picture.
Dame Justice Hogg never intended for Ellie to experience harm. She also passed her judgment during a period in history where deep public concern existed, and continues to exist, over courts removing children from their parents without just cause. Had Dame Hogg decided the best course of action for Ellie was adoption, there would have been an equally strong reaction to this decision. That she tried to see beyond the evidence offered was not an act of recklessness or contempt, but one of genuine concern.
Nevertheless, the case exposes an uncomfortable truth about the effectiveness of traditional hearings for child protection cases, and arguably cases in our civil and criminal courts, too. Relying on judges who have no training in psychology to work out whether parties being cross-examined are telling the truth or not, is unacceptable. When evidence is scarce or piecemeal, and all that’s left is the word of the person being questioned in court, this lack of training amongst family judges not only obstructs justice but also places children at risk. And despite her best efforts, which prompted her to believe Ben Butler’s testimony in spite of all the evidence before her, Justice Hogg must now live with a terrible truth. A truth Ellie’s family will also have to live with for the rest of their lives.
Justice Hogg’s good intentions will not offer Ellie’s family any comfort, especially in light of the many warnings they offered. Putting ourselves in the family’s shoes for a moment, we are not sure we could forgive the decision or the person who made it, knowing that the truth was in plain sight and yet invisible to the court.
In 2012, we wrote a post congratulating Justice Hogg on her judgment. At the time, we accepted her view that Ellie’s parents had been badly treated by child protection professionals and the police, that they were innocent and that they loved their daughter in the best possible way. The post has since received a strong response and so we feel we should clarify its publication. When the judgment was initially reported, we felt it honoured an important principle many judges still ignore: that keeping parents and children together whenever possible is always preferable to removing children from their families. We are deeply distressed by Ellie’s death and out of courtesy to the family, if they would like us to remove the post, we will do so.
We would also like to offer our condolences to Ellie’s family and wish them strength, courage and hope during this incredibly difficult time.