On 5 August 2016, the The Daily Mail, ran an article about the Ellie Butler case based on Freedom of Information Act requests to the Ministry of Justice. Similar articles appeared elsewhere, for example Huffington Post and The Guardian, all in a similar vein, although perhaps slightly less colourfully expressed than the Mail’s version.
This is the headline
Child killer’s £2m legal aid: How taxpayers funded Ellie Butler’s warped father’s battle for custody of the little girl he went on to murder
Ben Butler, 36, was given a ‘blank cheque’ by taxpayers to fund his lawyers
Ellie’s loving grandparents left penniless after being denied financial aid
Neal and Linda Gray spent £80,000 savings battling to save six-year-old
Mr Gray branded it ‘unbelievable’ Ellie’s killer was given so much money
We know that, of course, this case evokes strong emotional responses, but that makes it even more important to get the facts right. Doing the best we can to be polite, here are some corrections.
By way of preamble, it is important to remember that, at the outset of a child protection case, there is lots of suspicion but no proof. Parents often deny harming their children. Sometimes that is because they have not harmed their children. Parliament has legislated for legal aid to be available in such cases in recognition of the fact that these cases are really serious and parents should not be pre-judged and children should not be permanently removed from their families unless there has been a proper and fair process.
“£2m legal aid” : WRONG
From the body of the article :
The figures were obtained by the Daily Mail under Freedom of Information laws and reveal that in total the pair were handed £1,449,899 over 15 years.
The correct figure if rounded is £1.5m. If rounding to the nearest million it should say £1m.
which funded the “Father’s battle for custody” : WRONG
Firstly, it wasn’t a custody battle. “Custody” was abolished 30 years ago and replaced with “residence” and subsequently “child arrangements”.
Secondly, the type of case was not a “Custody battle” type case, but care proceedings – a case started by the state to protect a child (this matters for a number of reasons apart from semantics – see below on the availability of legal aid in different types of case).
Thirdly, there was a care case about Ellie, and subsequently there was a care case about Ellie’s younger sibling, in the context of which the finding that Ben Butler had harmed Ellie was reconsidered and Mrs Justice Hogg exonerated him. It appears that there was a third set of care proceedings following Ellie’s death, concerning the younger sibling. The court did have to decide after the exoneration whether or not Ellie should remain with her grandparents or go back to her parents, so in that sense there was a “custody battle”, but the issues were much wider than that, encompassing the subsequent death of Ellie and the risk to her sibling.
Fourthly, only £1.2m of the £1.5m related to the family court hearings. The other £0.3m presumably related to criminal matters.
Fifthly, a good chunk of that £1.2m was Ellie’s mother’s legal aid bill, NOT Ben Butler’s at all, leaving the amount of Ben Butler’s legal costs in the family case at under £1m (the article does say that some costs have yet to be billed).
From the body of the article :
This figure [the £1.5m] included £1,185,285 in ‘civil representation’, which includes cases at the Family Court. Of this, £223,266 paid for Gray’s legal team during the fateful four-month hearing that led to the return of Ellie. Butler’s final bill is yet to be submitted.
Ben Butler was given a ‘blank cheque’ to fund his lawyers : WRONG
Firstly, none of these funds will have ever been in Ben Butler’s hands / pocket / bank account.
Secondly, there is no “blank cheque”. The monies will have been paid directly by the Legal Aid Agency to his lawyers (usually after the event) and to cover the costs of disbursements such as court fees and experts’ fees. The reason that Ben Butler’s final legal bill has not been submitted is probably because there is a rigorous process of scrutinising expenditure via legal aid to ensure that funds are properly spent, and the proper preparation of such a bill is complex in itself. The rates at which lawyers are paid are fixed in secondary legislation approved by Parliament. In some instances the Legal Aid Agency must give prior authority for expenditure before costs are incurred.
The figure of £1m is likely to include the costs of junior and leading counsel throughout the proceedings in 2011-2014, and the cost of a barrister in 2009 when the original findings were made (unclear if a QC was used at that stage). The trials will have been lengthy, given the significant numbers of medical experts who had to testify, and the legal complexity of the case (which is confirmed by the fact that the matter was dealt with at High Court Level from 2011 onwards). The caption to one of the pictures describes Ben Butler’s legal team as “Rolls Royce”. In the 2012 proceedings all parties except the local authority were represented by leading and junior counsel. In the 2014 proceedings all parties had similar “Rolls Royce” legal teams of leading and junior counsel. This reflects the complexity of the case, because the Legal Aid Agency are very stringent before authorising the instruction of leading counsel.
A campaigner is quoted in the article saying “I am horrified by this. This just shows how our system is skewed towards the offender who has got the lion’s share of legal aid.” All parents, and all children are entitled to legal aid on the same basis in care cases in order to ensure that the evidence is properly tested and the trial is fair and produces the right outcome for the child as far as that is possible (clearly in 2012 the court did not reach the right outcome, but not for lack of trying). Local Authorities are of course public bodies and so whilst their legal costs are not paid for by the Legal Aid Agency, they are still spending public funds on lawyers.
The figure of £1m is also likely to include the costs of Ben Butler’s share of the instruction of the medical experts in all three fact finding hearings (some instructed singly and some jointly). For the purposes of this blog post we have not counted the number, but by way of illustration : in 2012 there were opthalmological experts, neurosurgeons and neuroradiologists, paediatricians – and in some cases more than one in each discipline. In 2014 after Ellie’s death there were also experts in post-mortem disciplines. Through that expert medical evidence findings were made against Ben Butler, and Ellie’s sibling was protected.
The article describes the costs as “extraordinary“. However, whilst the costs are significant, they are not at all extraordinary for this sort of case, particularly since they represent the cost effectively of three complex sets of proceedings involving leading counsel and medical experts.
Based on previous Ministry of Justice / Legal Aid Agency releases of information, it is also highly likely that the sum of just under £1m is inclusive of VAT on things like barristers and experts fees (20%), and, in the case of counsel, the sums paid are gross income rather than net profit, because they are self employed.
Awarded legal aid because they were on benefits? WRONG
Ellie’s grandfather gives an account in the body of the article, which says the grandparents, who were funding their own legal representation “ran out of cash in the final weeks of the Family Court hearing, leaving Butler and Gray’s lawyers free to claim the case as Sutton Council also dropped its opposition.” Mr Gray is reported as saying
“We were willing to do anything to get her back. We fought tooth and nail. But it wasn’t an even playing field, we ran out of money and ended up not being represented in the case. It makes me very angry, it’s just unbelievable…We were turned down for legal aid but because they were on benefits they were able to get it.”
We agree that the fact that the grandparents were not provided with legal aid is highly regrettable, but Mr Gray has misunderstood the position in terms of the parents’ legal aid. Neither Ellie’s mother or father were awarded legal aid because they were on benefits – ALL parents in care proceedings are entitled to legal aid regardless of their means or the strength of their case. Therefore, all parents who the state says should have their children removed because of allegations of inflicting harm on their children (some of whom have harmed their children, some of whom it turns out have not) are protected in the same way.
In care cases, a person who is caring for a child and who has parental responsibility for them also qualifies for this sort of legal aid. At the time of the 2012 proceedings Ellie’s grandparents were caring for Ellie under a Special Guardianship Order and therefore had parental responsibility for her. However, because (we think) the case at that stage was one issued in connection with the younger sibling, and the grandparents did not hold parental responsibility for that child they were not eligible for legal aid. That is a highly unfortunate loophole.
The article also states that
In its response to the Freedom of Information request, the Ministry of Justice said legal aid is only available to those who cannot afford to pay their own fees.
This is confusing and not entirely accurate, because the legal aid figures it disclosed related to care proceedings, for which parents’ legal aid is not means tested. Further, legal aid is sadly NOT available to all those who cannot pay their own fees, as Mr and Mrs Gray’s situation demonstrates. Their available income and capital (before it was depleted) probably did make them ineligible for means and merits tested legal aid that they might otherwise have been able to secure.
The grandparents’ position
See quote above from Mr Gray, which seems somewhat at odds with the second 2012 judgment of Mrs Justice Hogg, the judge at the time. She records the grandparents as agreeing to the plan for Ellie to be rehabilitated to her parents care, so it appears that by this stage Mr and Mrs Gray were not fighting “tooth and nail” for her. We cannot comment upon any private rationale for their decision, but Mrs Justice Hogg sets out the position as follows, presumably based upon what she had been told by the Grays directly or on their behalves:
Inevitably the Grandparents will have heavy hearts, but they have recognised the parents burning desire to regain the care of their little girl; they recognise that age and health are not in their favour; they do not wish “to fight” to keep Ellie; they want the best for her, and for them now to play a more back seat role in Ellie’s life: to be supportive, loving Grandparents. With this in mind they have accepted and agreed that Ellie should return to live with her mother, with [edited] and with the support of her father.
It is unclear at what point Mr Gray is said to have warned Mrs Justice Hogg that she would have “blood on her hands”. She does not refer to it in either of her judgments.
We may all feel horrified, with hindsight, by the way Mr Butler was able to manipulate everyone around him. That does not mean that parents facing care proceedings should be denied legal aid.
You can read previous Transparency Project blog posts on the case involving Ellie Butler and her sibling here.