Against All Warnings: Ellie Butler

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.

Against All Warnings: Ellie Butler — 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. They simply made up various excuses including “upset stomach, mum has interview, unwell over the weekend, sick in the night, and sore throat.”⁵

When Ellie did attend, staff noticed unexplained injuries. There was bruising to her forehead and an eye injury. Teachers observed the marks, raised concerns, and documented what they saw, but the power of Mrs Justice Hogg’s ruling effectively tied the hands of anyone who might have intervened. The message that had been sent to every professional in the network was clear: do not challenge these parents.

In October 2013, Ellie suffered a fractured shoulder blade but neither Butler nor Gray sought medical attention. Then on the morning of 28 October 2013, Jennie Gray left for work as a graphic designer in the City of London. Ben Butler was alone with Ellie at the family home on Westover Close, Sutton. What happened in the hours that followed has never been fully described by Butler, who has consistently denied responsibility.

At 12:46AM, Butler tried to call Gray at her office but reached voicemail and sent a text asking her to “answer”. Her colleague Tracey Bernstein said in a statement that the way Gray got up and left the office was “just not right”. Another former workmate said she had seen Gray looking “agitated” on the phone.⁶

Minutes later, Gray was caught on CCTV dashing out of her office, near the Old Bailey. She sent a text to her manager saying she had left because she was “feeling unwell”. She hailed a taxi and rushed back to Sutton. Paramedics were called about two hours later.

When emergency services finally arrived, they found Ellie on her bedroom floor. She was cold and unresponsive, lying beside a small pink child’s stool. Butler claimed she had fallen, but medical evidence suggested her injuries were caused by being thrown against a wall or hit with a “blunt weapon”. She was taken to St George’s Hospital in Tooting, where she died.

A post-mortem examination revealed the true horror of what had been done to her. Ellie had suffered skull fractures from at least two severe impacts. Skeletal pathology evidence showed that she had suffered four distinct periods of injuries throughout her short life – evidence that the violence had not begun on the day she died.

While Ellie lay dying, or was already dead, Gray set about covering her partner’s tracks. She washed clothing stained with Ellie’s blood and helped fabricate a cover story that Ellie had fallen accidentally. The prosecution alleged that Gray and Butler made the 999 call knowing that their daughter was already dead.

Ben Butler was charged with the murder of Ellie while Jennie Gray was charged with child cruelty and perverting the course of justice. The trial opened at the Old Bailey in May 2016. Butler’s defence counsel suggested that Ellie had suffered fatal head injuries when she fell from a stool while mimicking Peppa Pig, a children’s cartoon of which she was reportedly a fan.⁷

The defence asked whether Ellie might have jumped from a bed, fallen backwards, and struck her head in the manner depicted in the show. The pathologist who had carried out the post-mortem, Professor Anthony Risdon, was unequivocal in his response. He said that he had seen a large number of head injuries in children, had never come across a scenario like that, and had never come across a short distance fall that resulted in a similar injury. He concluded that Ellie died from a “considerable blunt impact to the head”, and noted there was a “strong possibility” that four marks on her jaw were caused by gripping.

The trial also heard evidence about Butler’s character. Jurors watched recorded footage from a camera found in the parents’ bedroom which showed Ellie present in the room while her father directed an abusive tirade at someone down a phone. She was seen in her pyjamas with a thick bandage on her leg while her father shouted off-camera.

Butler’s behaviour in court did little to help his case. He stormed out of the dock after accusing a pathologist of cremating Ellie “behind our back”, shouting: “You took samples and cremated her behind our back. You hid evidence.”⁸ When he took the stand in his own defence, he delivered a tirade against both his current trial and his original 2009 conviction. “It’s a disgrace,” he told the court. “Make no mistake about it.” He accused the prosecution of using the same pool of medical experts across multiple cases, claimed those experts were incapable of impartiality, and insisted evidence had been lost. He also complained that he was being tried for “arguing with my wife” rather than for his daughter’s murder – a remark that drew little sympathy from those following the proceedings.

Gray’s position was complicated. She had admitted perverting the course of justice in helping to cover up what had happened, but denied child cruelty. She was at work as a graphic designer in the City of London when Butler allegedly murdered their daughter. The prosecution argued that her devotion to her partner had overridden her concern for her daughter. Gray told the Old Bailey she had visited Butler in prison 190 times since he was charged with murder.

Tragically, Ellie’s grandmother Linda Gray died on the first day of the murder trial, having never seen justice served. Neal Gray was understood to be too ill to give evidence. The couple who had loved and raised Ellie for years were robbed, in different ways, of the chance to see the case through.

On 21 June 2016, the jury at the Old Bailey returned its verdict. Ben Butler was found guilty of murder. Following the guilty verdict, Butler shouted out: “I’ll fight for the rest of my life. Unbelievable,” before adding: “I want to be sentenced now so I can fight in the Appeal Court.” He said: “I will fight forever to prove this wrong. My daughter was jumping in the house. I’m 100% not guilty.” Gray, from the dock, said: “Big mistake. Spend another 10 years proving you wrong.”⁹

The sentencing judge, Mr Justice Wilkie, was not swayed. He described Butler as a violent, ill-tempered, domineering man who had attacked Ellie with “lethal violence” and then arranged the scene. Butler was sentenced to life imprisonment with a minimum term of 23 years. Jennie Gray was jailed for 42 months after being found guilty of child cruelty and admitting perverting the course of justice.

The conviction of Ben Butler triggered a cascade of official scrutiny, not just of the man himself, but of the system that had sent Ellie back to him.

The Serious Case Review was published on 21 June 2016, immediately after Ben Butler’s conviction. Christine Davies, the Chair of Sutton Safeguarding Children Board, said: “The serious case review concluded that the Family Court’s decision to exonerate Ben Butler of harming Ellie in 2007, 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.”

Yet the review was itself hampered from the start. Beyond furnishing the Serious Case Review with necessary court orders, Mrs Justice Hogg and other members of the judiciary refused to cooperate with it. In response to calls for accountability, a spokesman for the Judiciary stated that if a judge errs in law or on the facts, the remedy is to appeal, and that referring a judge’s decision to an extra-judicial body would be incompatible with the principle of judicial independence.

Neal Gray, speaking after the inquest into Ellie’s death, said that any input from him or his late wife Linda during Ellie’s short life had been “ignored”. He called for a full public inquiry, telling BBC Radio 4: “I want it all open above board and I want everybody to answer. Everybody failed Ellie, completely and utterly.”¹⁰

A senior coroner later said her “preliminary view” was that the way social services had handled the case were issues that needed to be investigated.

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