Ellie Butler was born to parents Ben Butler and Jennie Gray on 30 December 2006 at a hospital in Sutton, south-west London. To all outward appearances, her arrival was a moment of ordinary joy. But within weeks of her birth, Ellie would find herself the centre of a child protection crisis – one that would ultimately cost her her life at the age of six, and expose catastrophic failings in Britain’s family court system.

Ben Butler was born in Carshalton but moved to a village in Cambridgeshire with his mother and stepfather at the age of two or three. He grew up believing his stepfather was his real father, and described his now-divorced parents’ relationship as “volatile”. He later returned to London, attending school in Carshalton and leaving with, in his own words, “not so good” grades in his GCSEs. He went on to work selling car parts for Audi and Volkswagen before moving through a number of unskilled jobs.¹

Butler’s criminal record told its own story. He had a string of convictions for assault, including two attacks in public on an ex-girlfriend, both of which he admitted. His background was not that of a man prone to restraint or gentleness.

Butler met Jennie Gray in March 2006 when he was out drinking at a club in Sutton. He got talking to her after her brother, who she was with, fell off a bar stool. The pair spent the night together and embarked on a casual relationship. Gray found out that she was pregnant about eight weeks later. She was a graphic designer who would later work in the City of London; Butler was, by the time Ellie was born, a stay-at-home father.

By his own account, Butler’s attitude to fatherhood was transformed the moment Ellie arrived. Before, he had described himself as a party animal who thought that babies were “f***ing boring” but he later said holding his daughter changed him. “She was just amazing. I held her in my hand. She was sucking on my finger,” he said. “With her it was different. I was really proud.” He said he had never felt that way about anything before in his life.

But what he claimed and how he behaved were two completely different things.

In February 2007, when Ellie was still a baby, she was taken to Epsom and St Helier Hospital after Butler noticed that she was “suddenly soft and limp”. The hospital team found Ellie had subdural haematomas as well as retinal haemorrhages, and she suffered seizures. It was also noticed she had injuries on her forehand and hand that were consistent with burns. She was just six-weeks-old.²

A child protection investigation was launched, and doctors and social workers concluded that the injuries were not accidental. The evidence pointed clearly to non-accidental trauma – the kind consistent with violent shaking. The Family Court subsequently found that, on the balance of probability, Butler had caused Ellie’s injuries and that Gray had failed to protect her. Ellie was removed from her parents and, in June 2007, placed in the care of her maternal grandparents.

Those grandparents, Neal Gray and his wife Linda, would become Ellie’s primary carers for the next five years. By all accounts they provided her with a loving, stable home, and she thrived under their care. For Neal Gray in particular, Ellie was not just a granddaughter; she was the child he was raising as his own.

In March 2009, Butler was found guilty of grievous bodily harm in respect of Ellie’s injuries and was sentenced to 18 months in prison at Croydon Crown Court by Judge Timothy Stow QC.

Butler did not accept his conviction. He protested his innocence throughout and, along with Jennie Gray, mounted an appeal. In 2010, their efforts bore result, although not because Butler was proven innocent, but because of shifts in medical understanding around infant head injuries. New medical evidence cast doubt on the strength of the case, and the judges ruled there was “no rational basis” a jury could reject the possibility of an “unknown cause” of Ellie’s injuries. The Court of Appeal also ruled that the trial judge’s summing up contained “serious misdirections”. On 17 June 2010, Lord Justice Moses led a panel of Court of Appeal judges in quashing Butler’s conviction.

The quashing was not a finding of innocence. It was a finding that the original conviction was unsafe in light of evolving medical science. However, the distinction was lost in what followed. The Serious Case Review later concluded that the Family Court’s decision to exonerate Ben Butler, combined with its subsequent order for agencies to be sent a letter to that effect, had a very significant impact on how agencies could protect his children from that point in time onwards. Butler’s exoneration and the judge’s statement about him being a victim of a miscarriage of justice had the effect of handing all the power to the parents.

Armed with his quashed conviction, Butler wasted no time in launching a campaign to regain custody of Ellie. Butler and Gray embarked on a high-profile publicity campaign to get Ellie back. Butler began a relentless media campaign claiming that false allegations had led to his daughter being removed from the family. He even appeared on TV show This Morning.

Behind the scenes, the legal battle was ferocious and deeply unequal. Butler and Gray were given legal aid to the tune of £1 million. The grandparents, on the other hand, spent their entire life savings of £70,000 trying to defend themselves. Neal and Linda Gray fought as hard as they could to keep Ellie safe, but they were outgunned financially and, ultimately, judicially.

Ben & Ellie Butler

In July 2012, the matter came before Mrs Justice Hogg in the High Court’s Family Division. Despite the concerns raised by police, social workers, and Ellie’s own grandfather, Mrs Justice Hogg sided with Butler and ordered Ellie returned to her parents’ care. The Family Court overturned an order which had previously protected Ellie from her parents, and went so far as to declare that any injury caused to Ellie had been “purely accidental”.

Neal warned the judge she would have “blood on your hands”.³

A Serious Case Review later found that Sutton Children’s Services felt “powerless to act” following the High Court’s ruling, and that Mrs Justice Hogg’s judgment had gone much further than simply quashing Butler’s previous conviction. In her eyes, he had been entirely exonerated as a victim of a miscarriage of justice. That had the effect of telling social services to “back off”, despite their ongoing concerns about returning Ellie to her parents.

Ellie was returned to her parents in November 2012. She was five-years-old, and she barely knew them. The contrast with the grandparents who had raised her must have been immense. When Gray arranged for her parents to see Ellie, they were stunned by her appearance. Neal remembered: “Her appearance changed. She had grown thin and gaunt. She had sunken eyes and dirty, matted hair.” She asked when she could “come home.”⁴

Ellie began attending Avenue Primary Academy in Sutton, but her attendance quickly became a source of serious concern. Teachers noticed she was repeatedly absent from school. The school’s headteacher, Alex Clark, said staff had concerns about the family and had offered the parents help which they did not accept. Butler and Gray would not meet teachers to discuss why Ellie had missed periods from school....

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