Court of Appeal publish secret family court ruling in Ellie Butler case

A ruling relating to the murder of six-year-old Ellie Butler which had been kept under wraps for more than two years has been published.

The ruling, made by Mrs Justice Eleanor King following a private hearing in the Family Division of the High Court, was made public on Thursday after a number of media organisations took legal action.

Mrs Justice King analysed issues in June 2014 – after Ellie had died but before her father Ben Butler was convicted of her murder.

Social services bosses at the London Borough of Sutton, who had been responsible for Ellie’s welfare, had asked the judge to make ”findings of fact” to help staff take decisions about the future of a younger sibling.

Mrs Justice King, who is now a Court of Appeal judge, concluded that, on the balance of probabilities, Butler was ”responsible for Ellie’s death”. The judge said Ellie had suffered a skull fracture.

The King ruling was published following a decision by the Court of Appeal.

Earlier this summer, a number of media organisations asked a High Court judge to conclude that Mrs Justice King’s ruling should be published.

They said publication would be in the public interest as a result of Butler’s conviction.

But Mrs Justice Pauffley, who also sits in the Family Division of the High Court, rejected the application.

Editors then appealed and three Court of Appeal judges decided Mrs Justice Pauffley had been wrong.

Ellie died in October 2013.

Butler was convicted of murdering her in June 2016 following a trial at the Old Bailey – and given a minimum 23-year jail term.

Ellie’s mother, Jennie Gray, was sentenced to 42 months in prison after being convicted of child cruelty. She had admitted perverting the course of justice.

A number of family court judges, including two High Court judges based in the Family Division, have overseen private hearings relating to the case.

Butler had been convicted of shaking Ellie when she was a baby – before being cleared on appeal.

The little girl had been placed with grandparents after Butler was accused of shaking her.

Following his appeal Mrs Justice Hogg re-analysed issues at a hearing in the Family Division of the High Court in London.

She published a ruling in October 2012 and concluded that Ellie should be returned to the care of Butler and Gray.

Her decision was not challenged in the Court of Appeal by Sutton council bosses.

A council spokesman said lawyers had advised bosses that there were no grounds for appeal.

Mrs Justice King then analysed issues in 2014 – following Ellie’s death – and was asked to help social services staff make decisions about the future of a younger sibling.

In her ruling, made on June 30, 2014, Mrs Justice King – who is now a Court of Appeal judge – said Mrs Justice Hogg’s 2012 ruling had been “lengthy, detailed and careful”.

Mrs Justice King said Ellie had been admitted to hospital on October 28 2013 after suffering a “significant head injury” when in the “sole care” of her father.

She said medical experts had concluded Ellie had been hurt as a result of “one or more severe blunt impacts” – they said her head had either struck a “rigid surface” or been “hit with a heavy blunt instrument”.

The judge said post-mortem evidence showed that between two and four weeks earlier, Ellie had suffered “substantial blunt force trauma to her back”.

Mrs Justice King said Butler had “wholly failed” to engage with family court proceedings.

He had failed to comply with court orders and been in contempt of court “time and again”.

Butler and Gray had asked for family court proceedings to be adjourned until the criminal trial had ended – their application had been refused.

A lawyer representing Butler had said Butler would “decline to answer questions” if required to go into the witness box.

Shortly before Butler had been due to give evidence, at the family court hearing, Mrs Justice King said she had been informed that he “intended to play no further part in the proceedings”.

Gray had “followed suit” and indicated that she too would play no further part.

Mrs Justice King said she had analysed written evidence contained in 24 lever arch files.

Mrs Justice King outlined the background and “events leading up to Ellie’s death” in her ruling.

Butler and Gray had met in March 2006 and Gray became pregnant with Ellie “almost immediately”. They had not lived together.

When she was about two months old, Ellie had suffered burns to her fingers, encephalopathy and subdural and retinal haemorrhages after being taken to Butler’s flat.

Mrs Justice King said Butler and Gray were involved in “petty offending” including shoplifting and benefit fraud.

Butler had been convicted of a number of “minor offences of violence”.

Mrs Justice King said: “With the benefit of hindsight, however, there were some other more sinister matters of concern such as the mother attending at hospital on occasions with a number of lacerations, made more chilling by a Google search found on her computer ‘stabbed in the leg…’ and another Google search dated September 2008 refers to ‘Treatment of Broken Noses’.”

She said evidence about the couple’s relationship – before and after the hearing before Mrs Justice Hogg in 2012 – had been found in letters, diary entries and documents on a computer hard drive.

One letter from Butler to Gray said: “Please try harder with your mouth as it is a trigger for me… I had hope (sic) you would have learnt by now.”

A letter from Gray read: “Please don’t let Ben leave me, but make him learn to like me, stop violence and make him want me.”

“Throughout 2012 there are numerous diary entries from the mother referring to her and the father being ‘off our faces’ – clearly a reference to rendering themselves incapable as a result of drink or drugs,” said Mrs Justice King.

“Most of the diary entries are sexual: They do not record a balanced, loving sexual relationship but rather a running log of the mother’s desperate efforts to please the father by using sexual advances of various types.

“The picture is one of violence and abuse coupled with a regular excess of drink and/or drugs.”

Mrs Justice King said she had also seen “text traffic”.

She said Mrs Justice Hogg had not had as much information about Butler and Gray in 2012 as she did in 2014.

“It would not have been surprising had Mrs Justice Hogg had available the information that I have about the violent and abusive relationship as between the mother and the father if she had regarded the ‘broad canvas’ against which she considered the medical evidence as being of a very different hue,” said Mrs Justice King.

“Both parents gave evidence categorically denying domestic violence or verbal abuse between them – the mother blaming Botox for bruising to her face when domestic violence was suspected.”

She added: “Mrs Justice Hogg, denied as she was of the text messages and an understanding of the violence endemic in the relationship, found the evidence of the parents to be impressive and truthful. In fact what is now obvious is that both the mother and father were being untruthful about the nature and quality of their relationship.”

Mrs Justice King said Gray had been pregnant again in 2013 – but had a termination.

The judge said doctors caring for Gray had been worried that she had been subjected to domestic violence.

Butler’s “resentment” at having to care for Ellie and her younger sibling had been revealed in texts.

In one he had said: “I don’t want this life … as for kids, your dream not mine.”

In another he had written: “… you decide if you want … Ellie or not.”

Mrs Justice King said Ellie had moved from the tranquillity of her grandparents’ home to a “toxic” atmosphere with her parents.

“Life cannot have been easy for Ellie,” said Mrs Justice King.

“To move from the tranquillity and calm of her grandparents to the toxic and abusive atmosphere … of her parents must have been deeply disturbing for this little girl.”

She said Butler had been recorded speaking to Gray on the telephone “in the most foul and abusive way” in front of Ellie.

Mrs Justice King said she had seen a note written by Gray headed “Ellie’s behaviour”.

“Constantly manipulative and won’t be helpful,” it read. “Feel you can’t trust her.”

The judge said Ellie had been five when it was written.

She said texts showed that Gray “repeatedly sought to ingratiate herself” with Butler in a “pitiable and wretched way” at the expense of Ellie and the younger sibling.

Mrs Justice King said Butler spoke of Ellie and the younger sibling in a “shocking way”.

One text said: “ur mental and prob r to blame for Ellie.”

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