Mrs Justice Hogg criticised by case review for ‘extraordinary’ decision to return child 11 months before father beat her to death

A senior judge in the family court took “unwarranted” extra steps in reuniting a man with a violent and criminal past with his young daughter 11 months before he beat her to death, the author of a serious case review has said.

Mrs Justice Hogg, who retired just weeks before Ben Butler’s murder trial began at the Old Bailey, has been heavily criticised in the official review of events in the run-up to six-year-old Ellie Butler’s death in 2013.

Her father was sentenced to life in prison on Tuesday, and his partner Jennie Gray was given 42 months for child cruelty and for her part in a “cynical” and “calculated” cover-up of their daughter’s death and their fake 999 call two hours after she had died.

Marion Davis, a former president of the Association of Directors of Children’s Services, said: “I think the crux of the matter rests with Mrs Justice Hogg. The extra steps she took were unwarranted.”

She singled out for criticism both the judiciary and the two private social workers at Services For Children (S4C) Hogg appointed in place of social workers from the London borough of Sutton who had fought Butler’s campaign to get custody of his daughter.

The serious case review investigating what went wrong in the period before Ellie’s murder does not condemn the social workers at Sutton council, who consistently opposed her being returned either to her parents or the school and health professionals involved with her care.

Significant criticism is directed at Hogg, however, whose decision to send Ellie back to her parents was described by Davis as extraordinary.

She said serious questions had to be asked about Hogg’s decision.

Ellie had been removed from Butler and Gray’s care at seven weeks old after Butler was arrested and later charged and convicted of assaulting her.

His conviction was overturned in the court of appeal in 2010 and he launched a two-year campaign against the courts, Sutton council and Ellie’s grandparents to win the child and her younger sibling back.

“She [Hogg] gave permission for a letter exonerating Ben Butler of causing any harm to Ellie to be circulated to all agencies and said he was victim of a miscarriage of justice,” said Davis.

“This is the most extraordinary element of the whole case. To say it’s surprising is an understatement, it’s an extraordinary step to take. Once that court judgment from Mrs Justice Hogg was in place there was virtually nothing that could be done to affect the outcome for Ellie.”

Facebook Twitter Pinterest Six-year-old Ellie Butler. Photograph: Family handout/PA

Hogg’s decision to exonerate Butler and rule that the head injuries Ellie suffered when she was seven weeks old were accidental went further than the court of appeal, the serious case review found.

The court of appeal had quashed Butler’s original conviction but not made any ruling on what had happened, merely concluding the conviction was unsound because of new scientific research which challenged the medical consensus on shaken baby syndrome.

Davis said: “The judge’s order gave all the power to the parents. Ellie’s murder is a tragedy of the highest order for the grandfather,” referring to Neal Gray who, along with his now deceased wife Linda, had looked after Ellie since she was 10 weeks old.

Davis said they found Ellie had thrived with her grandparents and that it was surprising S4C hadn’t given more attention to her attachment to them before rushing the girl back to her parents, who had severely restricted contact with her under court orders.

“We have a number of concerns about Ellie’s voice not being heard. S4C had a conversation with Jennie and determined that it was safe for Ellie to return to her parents even though the parents hadn’t got things like a bed ready.

“But S4C went ahead with the placement the following week anyway, even though there should have been a pause for reflection.

“The voice and the needs of the child should always be present and must always be heard. Ellie’s voice and needs should be heard above the needs of the parents. It wasn’t heard enough in the family court or by S4C,” she said.

Hogg and the judiciary declined to participate in the serious case review beyond providing the court orders.

S4C did not submit an independent review of their own role in Ellie’s care.

Davis said it was hard to learn from what went wrong if the judiciary was not prepared to cooperate with the serious case review.

Davis and Christine Davies, the independent chair of the Sutton Safeguarding Board, expressed concern at how Sutton social services were pushed aside and about the failure of both the family court and the independent social workers from S4C to listen to Ellie’s voice.

Both authors condemned the judiciary for not participating.



Davies said: “If the judiciary is not significantly open and cannot learn from its own actions, questions have to be raised. The safeguarding board will be making contact with the president of the family court and the Family Justice Council. The issue about whether the judiciary should be as accountable as other agencies needs to be addressed.”

She said questions also needed to be asked about independent social workers in general, and whether they were sufficiently capable.

They also “should be subject to inspection and regulation like other social workers. At the moment they are not. The lines of accountability must be clear, this case raises a lot of issues”, she said.

Services for Children said in a statement it comprised “of two experienced social workers” and was appointed by the court to “facilitate the rehabilitation” of Ellie with her parents.

“Our work was governed by letters of instruction approved by all parties and sanctioned by the court. We were not acting in any other capacity.”



They said they have “often thought of the impact of Ellie’s death on members of the family” and recognised “the sorrow they must have experienced in the time that has elapsed”.



Services for Children added: “S4C had great respect for the care Ellie’s grandparents gave to her while she was in their care. It was evident that they were devoted to her. We were mindful of their strong bond and encouraged Ellie’s parents and grandparents to try to work together to maintain contact.

“The SCR [serious case review] refers to the balancing act that S4C undertook between enabling Ellie to develop a relationship with her parents and sibling and maintain her relationship with her grandparents and the difficulties encountered in this due to the fractured adult relationships.”