Ben Butler's case reminds us the justice system is not infallible

http://www.guardian.co.uk/law/2012/oct/18/ben-butler-justice-system

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Ben Butler, found to have shaken his seven week old baby in both care proceedings and criminal proceedings in 2008, has finally been declared an innocent man. Ben had taken his daughter Ellie to hospital after she had collapsed with breathing problems, but suspicion quickly fell on him when doctors believed the symptoms she displayed were conclusive evidence of shaking. Five years on, and the discovery of medical evidence that no one had previously seen, a high court judge has exonerated Ben of any wrongdoing.

Ben's case is a reminder that the criminal and family justice systems are not infallible. Medical experts, police officers, social workers, lawyers and judges can, and do, get it wrong. However, it also reassures that in the end justice can still prevail.

In criminal proceedings the prosecution has to prove beyond reasonable doubt that someone is guilty, but in care proceedings, which determine whether or not a child should be removed permanently from their family, there is a lower "balance of probabilities" test. This means it is easier for a court to find facts "proved". So a parent cleared of causing harm to a child in a criminal court can still be found to have committed the same offence in a care court.

Earlier this year Chana Al Alas was cleared of the murder of her son in the criminal court but had to wait to be exonerated following a second trial in the family court before she was able to resume care of her daughter. In Ben's case it took one morning for the court of appeal to quash his criminal conviction. However it took over a year and a lengthy trial before he was able to prove his innocence in the family court. By then Ben had a second daughter but she too had been taken into care while the original care findings stood.

There are sound reasons for the difference - care proceedings are concerned with the protection and safety of vulnerable children rather than the liberty of adults. However, even though there is a lower legal test, the stakes are by far the higher as care proceedings can lead to the most interventionist step the state can take against any individual: adoption.

An adoption order severs a child's ties with their birth family and changes a child's legal identity, not just for their minority but for the rest of their life. A criminal conviction can be quashed on appeal at a later date, as in Ben's case, or expunged from the record with the passing of time. But adoption can never be reversed. Had Ben's children been adopted that would have been the end of the story, regardless of his innocence.

Adoption is now high on the government agenda. We have an adoption "tsar", the introduction of adoption scorecards and targets for local authorities, and now proposals to speed up the approval process for potential adopters. There are also proposals to encourage the separation of siblings in care, putting the desire to place as many children for adoption as possible ahead of the desirability of keeping siblings together. There are very few other countries with an adoption policy at all, let alone one advanced with such zeal.

While adoption can be the best outcome for the right child in the right placement, it is not a panacea. It can be extremely challenging.

In a climate where the government is so determined to fast track the adoption process, the preservation of our family justice system has never been more crucial. We need the safety net of independent judicial scrutiny to ensure that only the right children are freed for adoption.

However, a fast track approach to how decisions are taken as to whether a child should be adopted is about to be implemented. The use of independent experts will be curtailed and judges will no longer be asked to scrutinise details of local authority plans. Continual cuts in funding also prevents proper scrutiny of cases and risks children being short changed.

On top of this, cases will be expected to finish within a strict six month time limit, save in the most exceptional circumstances. This means we will have six months to determine whether disputed allegations against parents are true or not, and if true to see whether parents have capacity to change. Six months to see whether therapy or other support could be put in place to keep a family together. Six months for relatives to come forward and offer to care for children and to be assessed. Placing an artificial time constraint on decisions for individual children means corners will inevitably be cut as a quick decision is prioritised over a right one. The current system may not be perfect, but it does remain flexible enough to allow justice to be done.

What we needed to ensure justice for Ben was expertise, funding and time. All three elements are now in jeopardy. Luckily, Ellie and her sister were not placed for adoption and we had the chance finally to get to the truth. Now aged five and three, they have the opportunity to spend the rest of their childhoods and beyond in each other's lives and with their mum and dad.

We cannot risk a future in which rushed justice means rough justice for children and for their families.

<em>Emma Sherrington represented Ben Butler in his care case</em>