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Child care law is unlike any other area of law.   If I make a poor job of drafting a commercial contract, the worst that can happen is that people will be out of pocket.  Life will go on.  If I fail to get the appropriate medical reports for the victim of a road accident or an industrial disease, they will be out of pocket, not have the resources they should have had, but at the end it is ‘only money’ and my insurers will have to make it right.  The difference with child care, as we all know, is that we are dealing with life and limb and whatever we do will change someone’s life forever.  We all hope for the better but, ultimately, if we call it wrong, someone may die.  If you deal with child protection work, that is the daily reality.  There is no safety net.  No amount of insurance can ever put it right.

The courts are possibly the worst way to find out what happened in the past; with the exception of every other system.  The final decision is made by a person who was not there.  He, or she, is assisted by a team of other people who were not there either.  Usually, none of them will have any prior knowledge of the people who were actually present and they are unlikely to have had a comparable experience themselves.  Some, or perhaps all, of the people who actually witnessed the events may be lying or mistaken in whole or in part.  In any event their accounts are likely to be, at least partially, irreconcilable.

That is the problem faced by every civil and criminal court.  The only solution would be if Big Brother watched and recorded every moment of our lives and there are some prices that are simply too high to contemplate.  In children’s cases however, the problem goes further, because predictions then have to be made about what will happen in the future.  That is fraught with risk.  Once you have excluded methods such as runes, tarot cards, crystal balls and the entrails of poultry, there is really only one thing left to do.  You take a ruler and pencil.  You plot a series of fixed events or points in the past and use them to project a line forward into the future.  This depends on two dubious assumptions.  Firstly, that the fixed points in the past are correct.  See the preceding paragraph for the caveats there.  Second, you have to accept that the future will follow a straight line trajectory, with no unexpected swerves, hair pin bends, or other deviation.  Such consistency is, in fact, rare.

There is even a perverse extent to which years of experience can actually be a problem, as we look back for templates that seem to fit the present case and fit things into that pattern, even when the ‘fit’ is less than comfortable.

What follows from this is that from time to time, however much care we take, we will get it wrong.  None of us are omniscient; we are, in almost every case, trying to do our best with limited information and defective tools.

The reality is that there is only one person ‘to blame’ for the tragic and unnecessary death of Ellie Butler and that is her father. 

The proceedings were, without doubt, complex and difficult.  Hogg J.  did not just go off on some insane frolic of her own.  She had evidence from eminent medical experts and heard argument from highly experienced advocates for the local authority, the parents and the child.  All of them were trying to do there honest best to sort out a situation which was not of their making.  If Ellie’s father had simply not attacked his child, or if the parents had not lied and manipulated, the problem would never have arisen.

Yes, we must look at what happened and what could have been done better, but this must not be a witch-hunt.  None of us are so wise and all-seeing that we always make the right decision.  The dilemmas faced by the judge and the other professionals involved, are not capable of being condensed into simple headlines, or even a few short paragraphs and even now the full complexity is not entirely known.  A little humility would not go amiss.

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