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The event will attract 1 CPD point. We now, sadly, know the reality of the risk he posed was very high. Hopefully the conversation can continue on October 3rd and we will report back. Why not leave it up to the police and the criminal courts? But again, the family court needs to make a decision about the welfare of any children and where they should live.
For useful discussion about the interplay of criminal and family courts, see our posts about the case of Poppi Worthington. A separate fact finding hearing is usually necessary if there is a dispute between the local authority and parents about what has actually happened to a child upon which the outcome of the case is likely to turn, most commonly an apparently inflicted physical injury to a child.
In a case which has come to court as a result of the discovery of unexplained injuries to a child the power of the court to make a care or supervision order will often entirely depend on whether or not infliction or reckless injury to a child can be proved or a failure of a parent to protect a child from being harmed by someone else.
A parent who deliberately hurt a child and who lies about it, is a much bigger future risk than a parent who hurt a child by accident. The questions and issues posed by this case revolve around why the fact finding process failed to identify the risk Ben Butler actually posed.
The Judge was deciding the case that was put before her which appears to have primarily focused on whether or not he hurt Ellie when she was a baby.
After the finding of fact, the court asked for independent social workers to report, by which time the local authority did not pursue any other findings against Ben Butler. Wikipedia defines it thus: An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense.
Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems. Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations.
What does this mean in practice? What does this mean for the role of the local authority and the judge? The Judge can only ever decide the case that is put before him or her by the local authority.
The local authority will then seek to persuade the judge that on a balance of probabilities, what is set out in the schedule actually happened. The local authority is therefore required to nail its colours to the mast.
But they must have a positive case to advance to support the findings that they seek. This is the very essence of the adversarial system. The parents are entitled to know what is the case against them, so they can provide evidence in rebuttal.
The Judge must know what case it is that is being tried. The role of the Judge is then to hear the evidence, evaluate it correctly and come to a decision. Should the ward live with the one parent or the other, or perhaps with someone else in the wider family? Should the ward have contact with the other adults?
If the guiding principle of law is that the interests of the ward are paramount section 1 of the Children Actthe determination in any particular case of what is in the best interests of this child necessarily involves an intense and anxious scrutiny of all the relevant circumstances.
The task can often appear daunting even to the most experienced judge. And, as any judge who has had to conduct such fact-finding hearings will know all too well, wading through a mass of evidence, much of it usually uncorroborated and often coming from witnesses who, for whatever reasons, may be neither reliable nor even truthful, the difficulty of discerning where the truth actually lies, what findings he can properly make, is often one of almost excruciating difficulty.
The duty on the local authority in these cases requires, as has been stated time and time again in various anxious judgments, clear headed analysis from the very start of a case.
Judges can only decide the case that is put in front of them, so local authorities must consider carefully how they frame their case and what findings are sought. We hope that local authorities will not shirk from this essential task of analysis by the tragic repercussions of the Ellie Butler case.
And nor is it the role of local authorities to litigate or pursue findings in order to protect themselves against the risk of an adverse serious case review by passing responsibility for assessing risk to the judge.In Butler’s usage, the chokehold, the sometimes fatal neck lock police use to coerce submission, is a metaphor for understanding how racial oppression functions in the U.S.
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