The Guardian view on Ellie Butler’s murder: human fallibility?

The family justice system has few admirers. Its clients come into contact with it at moments of stress and anger. It has to make the hard decisions that parents have been unwilling or incapable of making for themselves. Its judges are highly trained; they work within a clear legal framework. But in the end, they are still humans making human judgments, vulnerable to human error – occasionally on a tragic scale.

It was a ruling by an experienced high court judge that sent Ellie Butler, aged six, to live with, and soon to die at the hands of, her father, Ben Butler. Only a few months after her return, he subjected her to such a violent attack that he killed her. Sentencing him for the murder on Tuesday, the judge told him: “You are a self absorbed, ill tempered, violent and domineering man who, I am satisfied, regarded your children and your partner as trophies.â€? This was the same man who four years earlier was sent home in charge of his daughter with another judge’s warm and sympathetic character assessment ringing in his ears. “I wish the parents well,â€? said Mrs Justice Hogg, “they deserve joy and happiness.â€?

So what went so terribly wrong? The serious case review into Ellie’s death, published on Wednesday by the local safeguarding children board, raised concerns that are all too familiar from other inquiries about communications between agencies and opaque lines of management; but it also regretted the failure of either the judge or the court to help the review in any way. Its author, Marion Davis, wants a reappraisal of the duties the courts owe child safeguarding authorities. Ellie’s grandfather, who wanted to be allowed to raise the little girl himself – the outcome she wanted too – demands more. He wants the judge to give evidence to an inquiry. His bitter anger is entirely understandable, but his call for a judge to answer to another tribunal is wrong.

Child custody cases are never straightforward and this was a particularly difficult one. Butler had been convicted of an earlier assault on Ellie when she was a tiny baby. She had gone to live with her grandparents as a result, but later the conviction was quashed on a technicality relating to the problematic diagnosis of shaken baby syndrome. Volumes of medical evidence was heard by Mrs Justice Hogg as she weighed up whether to return Ellie to her parents. But it failed to establish an explanation for her injuries. In a long and careful judgment, which the Guardian is fighting to get put back into the public domain, she explains how she reached her fateful decision to try to reunite Ellie with her parents. A further hearing a few months later heard positive evidence of the process of reintegration, which led to Mrs Justice Hogg’s widely quoted exculpation of the parents and – in a ruling published only after further action by the Guardian – the order that all reference to earlier suspicions relating to the parents be locked away. The local authority, Sutton, which had opposed Ellie’s return to her parents, decided not to appeal. In the months that followed, the agencies that might have intervened as the child’s health visibly worsened felt powerless. Ellie, the serious case review concluded, was failed by the system because the system failed to listen to her.

There are sound constitutional reasons intended to protect judicial independence that prevent judges from appearing before external agencies. The doctrine says that everything the judge has to say about a case is set out in their judgment: the evidence they considered, the conclusions they drew from it, and finally the judgment to which the evidence led them. If their decision is to be challenged, it is by appeal to a higher court. An inquiry that tried to take evidence from a judge, as Ellie’s grandfather wants, would unavoidably be seen to threaten judges’ independence. But the question the serious case review raised was more subtle: could a way be devised to allow judges a role in an inquiry that sought to learn the lessons of failure?

The family division has a reforming president, Sir James Munby. He’s pushing at the barriers to automatic publication of judgments in family courts, and he’s a powerful advocate of a transparency that is long overdue. Too often, a genuine care for privacy appears to be an affinity for secrecy that feeds suspicion of an unaccountable arm of justice playing God. Finding a way to balance independence with a form of accountability won’t be easy. But a way needs to be found.