AVOIDABLE ERROR BY A LONDON COURT?
In a child custody case, paramount consideration should be in the interest of the child
THE Ellie Butler’s case — an English custody case that ended in the tragic death of the child —may not have received much media coverage in Malaysia, but has lessons for those who decide on custody of children.
I came to know about it after watching a CNN news item last week. It reminded me of what I used to say to syariah judges who attended my training workshops in the early 1990s on how to deal with child custody cases.
I reminded them that when deciding to whom custody of a child should be given (when the child’s biological parents and grandparents are on opposite sides seeking custody of the child), the paramount consideration is not the interest of the parents or the grandparents but the interest of the child.
It would appear that the Family Court judge in Ellie’s case had overlooked this important principle of family law when she ordered the child’s grandparents in July 2012 (who had been taking care of her for the past three years) to surrender her back to her parents.
On April 6, 2018, at the end of a two-week inquest into Ellie’s death by the South London Coroner’s Court, Coroner Dame Linda ruled that Ellie was “unlawfully killed” by her father, Ben Butler.
The coroner was, however, unable to conclude that any acts or omissions by the relevant agencies had contributed to her death. The inquest had examined whether there were failures on the part of relevant authorities with regard to her death, but it was not examining the Family Court ruling which ordered her grandparents to surrender her back to her abusive father.
The inquest’s scope covered the period from July 6, 2012 (the day the Family Court judge ordered Ellie’s grandfather to hand over custody to her father) to Ellie’s death on Oct 28, 2013.
A brief timeline of Ellie’s tragic story is as follows:
— Ellie (then a 7-week-old baby) was rushed to a south London hospital. Her father, Butler, was accused of shaking her after doctors diagnose bleeding in her brain. Ellie later made a full recovery.
— Butler was charged and later convicted of the offence of grievous bodily harm and cruelty at Croydon Crown Court, and given a prison sentence of 18 months. Ellie was then placed in the custody of her grandparents (Neal Gray and his wife).
— The Court of Appeal quashed Butler’s conviction when it ruled that the trial judge’s summing up to the jury was defective and conviction was unsafe. Sutton Council officials insisted that Ellie was at risk and allowed her parents to make brief supervised visits to her.
— Ellie’s father and mother (Ben Butler and Jennie Gray) obtained custody after a seven-week custody battle. Family Court judge (Mrs Justice Hogg) was satisfied that it was safe for Ellie to be returned to her natural parents.
— Ellie (then 6 years old) was found with severe head injuries at her home in Sutton, south London. She later died due to the injuries.
— Butler was charged with Ellie’s murder at the Croydon magistrate’s court;
— Ellie’s mother was charged with cruelty and intent to pervert the course of justice.
— Trial started at the Old Bailey.
— Butler was convicted of killing Ellie and was given a life sentence. Jennie Gray was convicted of child cruelty and perverting the course of justice, and given a prison sentence of 42 months.
After the inquest, Ellie’s grandfather, Neal Gray, described the day his granddaughter was taken from his care as “heartbreaking”. He told reporters that the failure on the part of child services to share information had led the Family Court judge to conclude it was safe for Ellie to live with her parents. He said Ellie had been “let down by fundamental failings in the system”.
Social worker Steven Atherton (who gave evidence at the inquest) agreed, saying, “We were part of a system that failed this little girl.”
In fairness to the judge, her erroneous decision was due to insufficient information regarding Ellie’s safety (if she is handed back to her parents) by the relevant child services. To me, it is a judicial error which could easily have been avoided.
It is important to note that the London borough of Sutton had fought all the way to the High Court from 2010 to 2012 to stop Ellie being returned to Butler despite his quashed conviction. Unfortunately, Ellie was returned to her parents after Justice Hogg had ruled that Butler had been exonerated by the Court of Appeal, saying it was “a joy” to see such a “happy ending”. She retired six days before the murder trial began.
Neal Gray (aged 70) had looked after Ellie since she was 10 weeks old, and had spent his entire savings (£70,000) fighting Butler in the courts.
In fairness to the judge, her erroneous decision was due to insufficient information regarding Ellie’s safety (if she is handed back to her parents) by the relevant child services. To me, it is a judicial error which could easily have been avoided.
The writer formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and then academia