A Local Authority v S & O  EWHC 3764 (Fam)
Fact-finding hearing as to whether a couple who had apparently given birth to a child in Nigeria had been aware that it was actually a ‘staged labour’.
A Nigerian couple (Mr and Mrs S) living in the UK had been together since 1993. In 1994, following IVF treatment, they had a daughter, E, who was severely disabled for the entirety of her short life until her unexpected death when she was 15. The parents, who by then were married, were keen to have another child but for some years were unsuccessful. In February 2011, following a trip to Nigeria, Mrs S went to her GP carrying a baby, O, born according to a birth certificate produced to the GP on 8th January 2011 at a maternity clinic in Port Harcourt, Nigeria. The GP was suspicious, having carried out a number of checks in the previous months which had revealed that Mrs S was not pregnant, and although she did not have concerns about the care of the baby, notified the local authority about her concerns about the parentage.
The local authority arranged DNA testing which showed that neither of the couple was O's biological parent, which result was said to have come as a shock to Mrs S. The local authority believed that O had been wrongfully removed from her natural mother in Nigeria and brought to the UK. Given that no-one had parental responsibility, they issued proceedings.
Since the couple were not natural parents, they were not entitled to automatic legal aid. They had to represent themselves at hearings until eventually they found counsel under the pro bono scheme. In this time, despite there having been no fact-finding hearing, an interim care order had been made and O had been placed in foster care, with no contact being arranged to the couple. The LA had progressed their plans, and their panel had approved a plan of adoption.
Eventually, a fact-finding hearing came before Coleridge J. The local authority sought findings, including that:
i) Mr S knew or ought to have known that Mrs S was not pregnant as asserted.
ii) Mr S knew or ought to have known that O was not their biological child.
iii) On a balance of probabilities, Mr and Mrs S were complicit in the removal of O from her biological mother at or shortly after the time of her birth.
iv) At the relevant date, O's care arrangements had been based upon a fundamental deception to which Mr and Mrs S were knowing parties.
The judge heard from Mr and Mrs S, who had been joined to proceedings, in great detail. M explained that the clinic had been recommended to her by her sister, that she had paid the clinic just under £6,000 and started treatment there with injections and tablets in December 2009. In April 2010, she started gaining weight and returned to Nigeria where the clinic confirmed she was pregnant. However, her GP in the UK told her she was not pregnant and referred her to hospital for a scan which showed no pulse or heartbeat from a baby. When she went back to Nigeria later in the year, the clinic again confirmed her pregnancy, and in January 2011, she underwent what she perceived to be the birth of O, with a doctor inducing labour through intravenous drip. She now felt she had been the victim of a very serious fraud.
The judge was also provided with an article from a Nigerian newspaper concerning 'baby factories' in Nigeria, suggesting that maternity homes in a number of locations, including Port Harcourt, were using illicit means to procure babies for childless couples. This described a similar process as had been described by Mrs S, noting that when it was time for delivery a substance was administered on the woman which gave a false impression of labour.
The judge, having been taken to this evidence, was in no doubt that this practice existed and that Mrs S had been a participant in it, but was left with the question of whether she had been a knowing participant in it.
The local authority asked the judge to believe that the couple's ignorance of the fraud was too far-fetched. They gave as examples of this the implausibility, in the context of the couple having lost their first daughter, of Mrs S flying to Nigeria when heavily pregnant without taking any precautions in relation to antenatal care, and of neither of the couple pressing the clinic to give them any idea as to due date. They submitted that Mrs S had been a knowing participant in a staged labour.
The judge, accepting that this was a highly mysterious case, analysed the evidence he had seen and read. He counted as important factors i) that the couple were God-fearing practising Christians; ii) that Mrs S had given impressive and consistent evidence; iii) that Mr S was a responsible and patently honest man; iv) that the couple had fully and willingly cooperated with the enquiry; v) that Mrs S had continued to return to her GP in the UK; and vi) that Mrs S continued to go to and from Nigeria during her pregnancy.
He concluded that Mr and Mrs S were innocent victims of bogus fertility treatment, albeit that such process resulted in an unorthodox adoption process.
Having made this finding, he encouraged the local authority to think again, on the basis that the couple were perfectly good candidates as parents and had an obvious moral claim to be the first people to be considered for the task of looking after O. When it became clear, shortly after judgment, that the local authority were not consenting to assessment of the couple and wished to appeal the judgment, the judge noted that he considered the prospects of successful appeal very slim, and ordered that an independent social worker provide an assessment of O in the couple's care.
Summary by Gillon Cameron, barrister, 14 Gray's Inn Square
IN THE HIGH COURT OF JUSTICE
 EWHC 3764 (Fam)
Royal Courts of Justice
Thursday, 15th December, 2011
MR. JUSTICE COLERIDGE
B E T W E E N :
A Local Authority Applicant
- and -
Mr and Mrs S Interveners
O ( a child) Respondent
Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
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MISS I. WATSON appeared on behalf of the Local Authority.
MR. N. PAUL appeared on behalf of the Interveners.
MS. J MERRIAM (Solicitor/ Advocate) appeared on behalf of the Respondent child by her Guardian.
J U D G M E N T
(As approved by the Judge)
MR. JUSTICE COLERIDGE:
1 Even by the standards of the Family Court this is a strange tale.. The primary facts are not significantly in dispute. It is the interpretation of the facts which is the central task of this fact finding inquiry which lasted two days and for which since the hearing I have been supplied with very helpful written submissions.
2 Put very simply, the central question is: what was going on when Mrs. S, the Intervener, took part in a staged "birth" in Port Harcourt, Nigeria on 8 January 2011 and which ended with the production to her of a child, the subject of these proceedings, O, who will evidently be one year old in about a month's time?
3 Amplifying on that simple question, was Mrs. S willingly and knowingly taking part in a charade, an elaborate false evidence production exercise, to convince later inquirers that the baby thus "produced" had been born to her and so was hers; or alternatively was she an innocent victim of a most extraordinary scam run by a bogus fertility clinic, who pretended they were delivering fertility treatment when in fact they were operating a type of baby exchange to supply abandoned/unwanted children to childless mothers for large sums of money? The local authority contends for the first explanation or version. The mother asserts the second.
4 Let me set out some of the primary agreed facts. Mr. and Mrs. S are a charming couple who come from Nigeria but who have lived in this country since 1987. Mr. S is 51 and Mrs. S is 50. I shall call them "mother" and "father" even though, as events develop and as it is agreed, it will be seen that in a most important respect it is far from an apt description. They were married in 2002, although they had been in a relationship since 1993.
5 In October 1994, following IVF fertility treatment, they had a daughter, E, who was severely disabled and mentally handicapped but looked after during her life by Mr. and Mrs. S. E very sadly died suddenly and somewhat unexpectedly in December 2009.
6 The mother had always been keen to have another child but after E's birth the mother was desperate, I think almost to the point of obsession, to have another child. To that end, she had inquired with her GP about the possibility of further IVF treatment and she engaged in frequent sexual intercourse with her willing husband, but all sadly to no avail.
7 In spring 2010, hoping and believing she might be pregnant, she carried out a home pregnancy test on herself but it was negative. She also visited her GP, Dr. H, on three occasions because she felt she was experiencing symptoms of pregnancy, in particular a distended abdomen and even occasional movements within the womb. In order to reassure the mother, the GP arranged an ultrasound scan of her uterus in September 2009 and the results produced in October revealed that the mother was not pregnant.
8 On 15 February 2011, the mother went to her GP following her return from Nigeria three days earlier. This time she was carrying in her arms the little baby, O, the subject matter of this application for a care order. According to a birth certificate produced to the GP on that day, the child had been born to the mother on 8 January at the God's Gift Maternity Clinic in Port Harcourt. The GP was understandably suspicious, having carried out the checks earlier during 2011 which had of course revealed that the mother was not pregnant. But the mother was adamant that the child was hers and that she had been born in Nigeria when the mother was over there earlier on a visit. The GP recorded in her notes on that day:
"The baby appeared very well cared for and I had no concerns for the welfare of the child and no concerns about the mental health of the mother."
9 So the general practitioner was quite satisfied about the mother's care and handling of the baby but highly suspicious about her parentage. Accordingly, she notified the local authority of her concerns and they notified the police.
10 When the mother was interviewed on 16 February by the social worker, Miss W, with the police in attendance, the mother again insisted that she had given birth to the child in Nigeria. On being asked by the police whether she had any photographs to establish the events that might have taken place there, she produced to them a short video clip on her camera which showed a woman in labour and a newborn baby lying nearby, still attached to its placenta.
11 The parents were willing participants in two sets of DNA tests which were then arranged. The results became available on 16 March and 23 March and they revealed that neither the mother nor the father were O's biological parents. The mother was apparently stunned when she was told the results.
12 Unsurprisingly, the local authority believed that the facts before them pointed inexorably to O having been wrongfully removed from her natural mother in Nigeria and wrongfully brought to this country. Given that no one had or was entitled to parental responsibility, they quite rightly issued these proceedings on 21 March 2011.
13 On 24 March, an interim care order was made and O was removed from the Ss into foster care. On 11 April 2011, at a case management conference, the local authority care plan, by that stage, for no contact was approved, so there has been none since then – in other words, a period of some nine months.
14 Despite the fact that there had been no investigation or fact finding, the local authority went ahead with their avowed care plan of adoption and on 11 July the Adoption Panel approved adoption.
15 Because the Ss are not O's natural parents, they have not been entitled to automatic legal aid. Accordingly, they have had very serious problems over representation in this highly unusual and complex matter. They have had to represent themselves before me on two occasions at earlier interlocutory hearings. However, finally, Mr. Nicholas Paul, of counsel, came to the rescue at the 11th hour under the pro bono scheme. To say that the court is grateful to him for his assistance is a serious understatement. He has been vital to ensuring the mother and father have their case properly presented to the court.
16 The findings which the local authority seeks are to be found in the bundle at A41 and 42 under the heading entitled "Findings Sought". Paragraphs, one, two, three, four, five and six of the findings are scarcely contentious. However, the last four findings are of central and cardinal importance in this case. I shall read them:
"(vii) Mr. S knew or ought to have known that Mrs. S was not pregnant as asserted.
(viii) Mr. S knew or ought to have known that O was not their biological child.
(ix) On a balance of probabilities, Mrs. S and Mr. S were complicit in the removal of O from her biological mother at or shortly after the time of her birth.
(x) At the relevant date, O's care arrangements had been based upon a fundamental deception to which Mr. and Mrs. S were knowing parties."
17 It is those four findings to which this fact finding hearing has primarily been focused.
18 The events I have set out above are agreed. Now let me turn to the mother's version of the events which took place in Nigeria prior to the birth. The agreed events and facts, as already outlined, have clearly called for a full and proper explanation from the mother and the father.
19 The mother and the father have been interviewed by the police on two occasions and have provided two statements. Both also gave evidence over the best part of two days to me. Mr. Paul quite rightly took them through their evidence in chief in what might be described as "the old fashioned way", inviting them to retell the whole of their involvement, line by line, without leading questions and from the beginning. That has given me a peculiarly good opportunity to assess them fully as witnesses and to assess their credibility. Such an assessment is key to my findings.
20 The mother's evidence in all material respects has been and is to this effect: the mother wanted another child and had sought help to that end both in this country and in New York and even India. Her sister, who is an educated lady with a Phd and who lives in Nigeria, had apparently undergone fertility treatment in Nigeria and as a result had given birth to a baby girl in 2009. So much is clear from the statement which that sister has filed although she has not given oral evidence.
21 In July 2009, the mother went to Nigeria to see the sister's child. It was then that the sister in particular recommended her to the aptly named Miracle of God Maternity Clinic. However, she returned to the United Kingdom but then returned to Nigeria with her disabled daughter, E, almost exactly a year ago in the middle of December 2010. It is a feature of the case that Mrs. S goes backwards and forwards to Nigeria on a number of occasions each year to visit her family.
22 By the time the mother returned in December 2010, she had decided to employ the services of the fertility clinic recommended to her by her sister, having seen the success that her sister had enjoyed. She takes up the story in her statement of 4 November, parts of which I shall read. She says this, starting at paragraph three:
"I have been married to Simon S since 2002. On 8 January 2011 I gave birth to O at God's Gift Clinic Maternity in Port Harcourt, Nigeria. The treatment started in December 2009 under Dr. Chineri Emica Precious who gave me a number of injections and tablets and capsules.
4. In April 2010 I started to feel the symptoms of being pregnant such as bloated stomach and gaining of weight. I returned to Nigeria in April upon Dr. Chineri Emica Precious's request for a medical check-up and she confirmed that I was pregnant.
5. I returned to the United Kingdom and visited my GP, Dr. H, who was not convinced that I was pregnant in May 2010. I asked her to reduce my blood pressure medication as I was now pregnant, but she declined until there was confirmation that I was in fact pregnant. At this stage, my symptoms of pregnancy persisted. I had another appointment with Dr. H in September 2010 where a body examination was done and she referred me to Homerton Hospital for a scan.
6. On 16 October 2010 I attended Homerton Hospital for a scan and it showed no pulse or heartbeat from the baby. This came as a great shock to me, bearing in mind what I was told in Nigeria, that I was pregnant. I kept up my line of communication with Dr. Chineri Emica Precious in Nigeria, who assured me that it was not unusual for the baby not to be seen on the scan. Also, I was reassured by the testimonies of others who had had the treatment before (my sister and a friend).
7. I returned to Nigeria in October 2010 to see Dr. Chineri Emica Precious who informed me, conversely to what I was told in England by my general practitioner and scan results, that I was pregnant and she continued to treat me with injections and one big medication. I assumed that this continued treatment was in order to maintain the pregnancy. I had no reason to doubt her sincerity or expertise in this regard.
8. In November 2010, Pastor B at my church in London, like other people around me, including my husband, asked me if I was pregnant as he saw that my stomach was bloated as if I was pregnant and I had gained a substantial amount of weight.
23 She continued at paragraph 13:
"In December 2010 I went to Nigeria for the yearly crossing over programme at the headquarters of MFM and later went to Port Harcourt.
14. Soon afterwards whilst in Nigeria, I noted that I was bleeding from my back passage. I recalled that when I was carrying E my previous pregnancy, that the baby and I were bleeding. However, in that prior instance, the bleeding was internal and this tragically led to E suffering her disability, as this was not detected on the scan.
15. In January 2011 during what I perceived to be the birth of O, I recall a doctor inducing labour through intravenous drip and I experienced what was labour, a very traumatic delivery and a baby was presented to me covered in blood as would have been normal in a delivery room. I felt all the natural manifestations of labour and delivery and my baby, O, was presented to me in the manner described. Subsequently, when both the Metropolitan Police and the Applicant suggested a DNA test, I fully cooperated and was not in any way concerned as to the outcome as I knew I had given birth to O. I had named her as was customary and obtained a birth certificate for her."
24 Paragraph 19:
"Since 21 March when we were informed of the DNA results that suggested that we were not the biological parents of O and she was removed from us, my whole life has been shattered and it was as if we had suffered E's bereavement all over again. In short, I have been depressed and traumatised. We have struggled to maintain any level of sanity as I am now convinced that I have been a victim of a very serious fraud by those who have exploited my vulnerability and infertility for their own financial gain. I had paid a total of 1.3 million naira (just under £6,000) to this medical practitioner at this stage for the fertility treatment. I enclose for the consideration of this court an article in The Vanguard, a Nigerian newspaper, that clearly sets out in detail the type of scam that I have been a victim of.
21. I have cooperated fully with the police and the Applicant in the course of their investigations into this matter. As a family, we coped fully with E's serious disability and maintained our composure and dignity throughout. The fact that we have been exploited in this way and the consequent investigation, albeit legitimate, has dragged on and has been devastating for us as a family. I categorically deny that we have been involved in any child trafficking, except to say that this is a tragic case in which we have been a victim."
25 That ends the quote from her statement. They obviously had in fact filed an earlier position statement, I think without any benefit of legal advice, on 11 April. In that they said this. It was a joint statement produced by both Mr. and Mrs. S. I read from it because it is of crucial significance:
"O was not deliberately removed from her parents in Nigeria. She was brought into this country as I was made to believe that I gave birth to her as a result of the fertility treatment that I embarked on from December 2009. During the treatment I went through gradual stages of pregnancy and was made to believe in the delivery procedure, under which intravenous drip and drugs were used to induce labour, that I gave birth to O. My experience of the treatment and the testimony of others who had previously undertook the treatment built a very strong belief in me that O was my biological daughter, until the DNA test results concluded otherwise. The strong belief in the pregnancy and birth experience led to O's birth registration. All due processes were followed to obtain travel documents for her to be brought to the UK as our legitimate daughter without any doubt.
The above beliefs were also responsible for us being so adamant that O was our biological child before we had the DNA results. We complied throughout with the investigation in good faith with every assurance that the DNA results would vindicate us. However, it was the DNA results that caused us to see ourselves as victims of crime or error."
26 They carry on in similar vein, concluding in this way at paragraph six:
"Regardless of the DNA results, we genuinely love O as we would love our own child. S, our nephew, has lived with us for over 11 years and we care for him and love him as our own child. We would be heartbroken if the court allowed O to be abandoned into the hands of the social services to navigate her way through the care system."
27 In conclusion they say this:
"In summary, this is the truth. We would like the court to know that we are not liars that the social services statement has portrayed us to be. We are a God fearing and law abiding family who have contributed positively to our great country. We strongly believe that in the event of O's biological parents are not traced we are best placed to meet all of her needs in terms of love and affection. We are the closest people to O. To deny us the opportunity to join this hearing would be denying her the possibility of having a stable, loving family and a home life with us. We will be grateful if our plea is accepted by the court."
28 That statement of course was in aid of their application to be joined in the proceedings, and indeed they were. To the extent that they have been able to, they have taken a full part in all hearings since the case management conference.
29 I heard from the mother, Mrs. S, at length giving oral evidence. She was cross-examined entirely properly and thoroughly, if I may say so, by counsel for the local authority, Miss Watson, but her evidence I am bound to say, by the end, remained completely unshaken. And her evidence to me was in all respects the same as in the previous accounts that she had given to the police and the social services, although there was understandably more detail. For instance, she described the clinic where the events took place and the agony that she went through while she was experiencing the false labour induced by labour inducing drugs and accompanied by internal examinations carried out by staff at the clinic.
30 She also emphasised that the idea for the use of the camera at the time of the birth came from her, not from the clinic, and that she had asked them to film the process so she could show her husband when she returned to England. She also described to me how she had been given tablets by the clinic to help with the production of milk for breast feeding and that she had in fact breastfed within hours of the child's birth. She ended by emphasising that she had been duped and that at no point did she believe at the time she was involved in a massive con.
31 I heard also from the father, Mr. S. He confirmed that he thought that his wife was pregnant in the early part of 2010 as she seemed to be putting on weight and suffering from fatigue and other symptoms associated with pregnancy. He accepted that he was suspicious when the GP scan showed nothing, but he trusted his wife and particularly so when she returned from Lagos in October with confirmation from the clinic in Port Harcourt that, despite the scan that had taken place in London, she was nevertheless pregnant according to the Nigerian examination.
32 In addition to the evidence of the mother, I have heard also from their nephew who, as I have indicated, has been brought up by the mother and the father as if he was their own child. He was in every respect an impressive young man. He too believed his auntie was pregnant during 2010.
33 There is another document in the papers, this time from the clinic itself. I shall read it. It is headed, "God's Gift Clinic/Maternity". It appears to be dated 9 January 2011 and it is described as, "Medical Report for Mrs. S." It reads as follows:
"The above-named patient was brought to my clinic on Friday 7 January 2011. She was heavily pregnant and complaining of stomach pain and stooling blood (diarrhoea) at intervals. On examination, I discovered that her haemorrhage condition was severe. Her BP was also excessively high at 205/110. In order to save the baby's life, we had to induce the pregnancy. She gave birth to a baby girl through vaginal delivery at 1.40am on Saturday 8 January 2011. The baby weighed 3kg at birth. They were kept under observation until Sunday 9 January that they were discharged."
34 That report is stamped by the Reverend Dr. Mrs. Chineri Precious. It has a lengthy number underneath it. It appears to be signed or initialled by the same person.
35 Could this be a true story or is it an elaborate piece of invention? On the face of it, the court's first obvious and natural reaction to this very far fetched tale is to be highly sceptical, but for one crucial piece of further evidence. It is in the form of a lengthy cutting from a newspaper, the Port Harcourt Vanguard, for 11 September 2011. This is also available in fact on the internet. Under the headline, "Baby Factories: how pregnancies/deliveries are framed": "Vanguard's investigation reveals more baby factories." There appears a two full page article carried out by an investigative journalist which describes in elaborate detail the process largely described to me by the mother. I shall read two sections from the article. I have already read the banner headlines about baby factories and it contains a number of black and white photographs. These passages are to be found in the article:
"Our findings reveal that the unpublicised native maternity homes use illicit means to procure babies for childless couples on the payment of huge amounts of money ranging from N750,000 to N1 million, depending on the sex of the baby. We gather that twins go for about N1.5 million or more. The delivery date depends on the baby seekers. While some opt for a nine month period, some go for a fast deal of one month or two, also depending on the availability of the baby from the sources. Investigations reveal that for those who go for a nine month period a pregnancy would be framed and a delivery date given. The delivery date can be postponed indiscriminately based on the availability of the baby. Their patrons are desperate women ranging from high society women, clergymen and women who most times hide the arrangements from their husbands. Most of these centres are found in …"
36 It mentions three towns including Port Harcourt. Then under the heading, "How Pregnancy and Deliveries are Framed" it reads:
"Investigations reveal that these clinics administer certain substances on the patients that form a sort of tumour in the womb of the expectant mothers, making them believe they were pregnant. Occasionally, a movement is caused in the belly making it look as if a baby is kicking. The women are warned not to go to any hospital or undergo ultrasound or any sort of scan as they would lose the pregnancy or baby in the process."
37 It goes on in similar vein and it contains this passage further on:
"Further investigations reveal that when it is time for delivery another substance is administered on the woman which gives a false impression of labour. Part of the growing tumour will come out through the vagina and it is cut to discharge blood and make it look as if there was an actual delivery. A baby is then sneaked in and made to cry. The woman is also made to believe she has been delivered of a baby. In Precious Ogbana's case, she told the reporter that when she had one of the babies it was recorded to a friend's cell phone but she deleted the video a few days later. She regretted deleting the stuff, fearing her husband would not like it, especially if the video got to a third party, adding that she went into labour and gave birth to the kids."
38 There are a number of case studies set out in the course of that lengthy, double page article. Having seen that article, there cannot be any doubt at all that this far fetched story is rooted most solidly in reality and that this kind of practice is common in certain parts of Nigeria. I have described the process as a baby exchange.
39 So there can be no dispute now that the mother was indeed a participant in this elaborate scam but, as I said at the outset, the central question remains and has to be answered: was she a knowing and willing participant?
40 The local authority's case is quite simple. They say it is simply unbelievable that the mother could have gone through this process without at some point appreciating what was going on, especially as in England she had received clear medical confirmation that she was not pregnant. I should be very slow, they urge, to swallow this story. I do not do any justice to a long and careful analysis of the case provided by Miss Watson, counsel for the local authority, but her written submissions are characterised by frequent use of the words "incredible, implausible, far fetched and highly improbable." I read just two particular sections in which she draws attention to factors which she seeks to emphasise underline the extent to which this is an incredible story. She says this at page six of her submissions:
"The court is asked to consider if it is credible that S" – that is to say, the mother – "highly conscious of the medical implications of her hypertension if pregnant to the point that she asked for a change of medication by May 2011 would, if genuinely of the view that she was pregnant, have taken no precautions in relation to antenatal care and would have flown six hours to Nigeria at a point when she believed she may have been heavily pregnant (eg., December 2011). If S was genuinely desperate for a baby and genuinely believed that she was pregnant, she would have been acutely concerned not to expose her baby to any risk that might jeopardise the pregnancy, especially after her traumatic and life changing experience with E.
Equally incredible, the local authority contends, is that neither Mrs S nor Mr S" – that is to say, the husband – "had any inclination to press Dr. Precious on when their long desired baby would arrive. They both accepted in evidence that they had no idea when the due date for the baby was. This was literally incredible evidence which makes no sense of the overall picture of the Ss as parents who have been waiting and trying for many years to add to their family. It is contended that it is highly improbable that neither of the Ss thought to ask this question at some stage or that Mr S was not sufficiently concerned about his wife's advanced pregnancy that he did not (a) think to cancel or postpone his holiday in November 2010 or accompany Mrs S there the following month; (b) raise a concern about Mrs S travelling to Nigeria by plane in the ninth month of her pregnancy. These points gain force when considered in the context of E's sudden and unexpected death in Nigeria. In such circumstances one might reasonably expect Mr. and Mrs. S to be extremely cautious about exposing Mrs S to any risk of harm to herself or the baby at a time when, if genuinely taken in by Dr. Precious and the time line described by Mrs S from February to October, they believed that Mrs S was in the final stages of her pregnancy (n.b., Mr S reported that sexual intercourse became impossible as a result, he claims, of the advancing pregnancy) …"
41 She gives the reference G40. The conclusion of her written submissions really is as follows:
"It is contended that the only realistic conclusion that can be drawn from this evidence is that Mrs S was a knowing participant in a staged labour. Moreover, Mrs S has embellished her account to ensure that it chimes in some key respects with her own previous experiences of birth with E, e.g., the bleeding. Rather than have photos or film taken of her holding her baby, Mrs S has a film which purports to show the scene immediately after the birth. This material strongly points to it having been created for the purposes of providing evidence in support of Mrs S actually having given birth, rather than a record of the mother and baby united for the first time outside the womb."
42 This point is perhaps significant and I will return to it in a minute. Then she refers to the fact of the visit by the mother to Dr. H on 15 February 2011. Appreciating obviously that that is a crucially important piece of evidence, counsel says this:
"The local authority contends that Mrs S took a calculated risk with this visit. Mrs S had known Dr. H for several years and enjoyed a close and supportive doctor/patient relationship with her. Her only reservation was that she failed to support her request for extra help with caring for E."
43 She concludes by saying this:
"By the date of the visit, Mrs S had secured all the formal documents and legal basis to support O remaining in her care in the United Kingdom, birth certificate, settlement visa, medical report from the clinic. It is contended that Mrs S did not think that Dr. H would seriously challenge her account of the birth, given the symptoms she had continued to record."
44 I do no justice to Miss Watson's very careful and full submissions. It is right however to point out that amongst the submissions made on behalf of the local authority there are points which I think are matters of obvious comment, but matters of comment which were never put to the mother. In those circumstances I do not think I can properly take any comments that were not put to the mother into account.
45 So, if one examines the local authority's approach to this case, it is, from first to last and has always been, that the mother was a knowing participant.
46 The Guardian has been of invaluable assistance in this case, particularly in the absence of representation for the mother until the very last minute. She has taken a more independent view about the mother's and father's case. Ms. Merriam on behalf of the Guardian has similarly filed written submissions and they contain these passages:
"It is submitted with respect that the local authority's case ignores two important considerations. Firstly, the court is dealing, particularly in the case of Mrs. S, a parent who had suffered a tragic loss of one child and had been desperate for a second child for a number of years. Mrs. S has had the twin tragedy of her one child, E, being born severely disabled and dying early and failed IVF and other fertility treatment to produce a second child. Such desperation and distress, the court may think, would make her an easy target for exploitation.
Secondly, there are cultural issues here. It is quite clear that Mr. and Mrs. S are active members of a charismatic church called The Mountain of Miracles and Fire and as such have a strong faith and belief in the power of prayer. Indeed, Mrs. S has travelled to prayer meetings in Nigeria for the ceremony for the crossing of the year, namely in the new year shortly before O's birth. The local authority's case assumes sophistication and deception by the interveners which the court may feel is not characteristic of their previous law abiding behaviour and their psychological make-up. Indeed, on the short video that was seen, Mrs. S who describes herself as stressed and under the influence of drugs was praying aloud.
Consequently, it is the Guardian's submission that the local authority has not proved the case in relation to the schedule of findings sought as against the character of Mr. and Mrs. S who have proved themselves to be loving and caring parents both to E and to S, whom they have raised as their own and who gave evidence on their behalf."
47 However, the Guardian goes on for obvious reasons to say that nevertheless the threshold should be seen to be met for the other uncontroversial reasons.
48 The Guardian has also emphasised in previous position statements that in her interviews with the parents she has always found them to give a credible account of what went on.
49 Naturally, Mr. Paul on behalf of the mother and father urges me, for many of the reasons already given by the guardian and for obvious reasons, to accept the evidence of the mother and father who he puts forward as having given clear and consistent evidence.
50 How do I analyse the evidence to arrive at a conclusion in this mysterious case? The following factors have guided my decision:
51 The mother is an intelligent woman who teaches at an adult literary college in London. She is a God fearing practising Christian, as is her husband, to whom lying is complete anathema. This factor has to count for something even in these cynical days in which we live.
52 The mother gave evidence to me at great length over two days and I found her to be impressive and unshakeable in relation to all important matters. In all important respects, her versions both in writing and to the police have remained consistent. In short, incredible though it seemed to me at the outset, by the end I was driven to believe her account.
53 By the same token, I found the husband, a responsible man in regular employment, to be a patently honest witness. I do not think for a moment he would have gone along with knowingly assisting his wife in participating in a deception on the court.
54 Both the mother and her husband have cooperated fully and willingly with the inquiry once they realised the circumstances of the arrival of the child and once they realised they were suspicious and they realised that these suspicions needed to be allayed. They willingly took part in the two DNA tests.
55 When conducting a fact finding inquiry, particularly one as strange as this, often the most important guide is to be found in the presence or absence of so-called "smoking guns". That is to say, factors which point to or are either consistent with or entirely inconsistent with one or other side's version of the possible truth. In this case, there are factors which, in my judgment, point inexorably to the conclusion that the mother is most likely to be telling the truth. What are these factors?
56 The fact that during 2010 she went on visiting her GP, firstly to find out if she was pregnant and then to check whether she was and whether there might have been a mistake. I find it to be unthinkable that she would have returned to the GP if she had knowingly become involved in this scam and after she had received negative tests in England. To do so could only sensitise the GP to the possibility of something untoward happening when the child was eventually produced to the doctor later. But that is precisely what did happen because the GP of course had the chance to examine the mother in the months preceding the so-called birth. In my judgment, the last thing this mother would have done is to go back to the clinic to persuade the doctor to arrange a scan when she could only have known it would reveal nothing.
57 By the same token, why was the mother going backwards and forwards to Nigeria and seeing the doctor if she knew the pregnancy was an invention? She would merely have gone out there in December, around the time of her expected delivery, and collected the child.
58 By the same token, it is unthinkable as I find that the mother would have produced the baby to the GP within three days after returning to this country if she had known the circumstances of her removal from her natural mother and Nigeria were highly suspicious or possibly criminal. She produced the child to her GP in all innocence, expecting the GP to be delighted to be proved wrong. Miss Watson, having to overcome this telling point, says that she took a calculated risk. That, if I may say so, is a gross understatement. It would have been sheer lunacy. As Mr. Paul points out, there were other much less risky ways of proceeding which would have hugely reduced the risk of detection which, were she part of the scam, she must at all times have feared.
59 Then there is the short video clip arranged by the mother. If there had been anything untoward going on which the mother realised, the video would have been set up and stage managed in a way which supported her having given birth. In fact, it does nothing of the kind. It merely shows the mother writhing in agony and a child lying in the vicinity, still attached to a placenta. There is in fact no sign or real attempt to link the baby with the mother. There is no sign of blood on the mother or indeed any sign that she had just given birth. It would have been the easiest thing in the world to have linked the baby more directly with the mother to make it look as if she had just delivered. Similarly, if this had been an elaborate deception, the camera would have had pictures of her arriving at the clinic and of the mother holding the baby etc., immediately following the supposed birth. The video evidence is certainly excellent evidence of the scam disclosed by the newspaper article, but in my judgment it points away from the mother's involvement.
60 I also think it is highly likely that, if the mother knew what had happened but nevertheless wanted to take her new baby to the doctor, she would not have gone armed with the camera and the clip ready to show the doctor the pictures if challenged. In fact, the mother did not do so. She only produced the pictures (potentially her best evidence if she was being deceptive) in response to questioning from the police and not as her first trump card and without being asked, as one would have expected.
61 All the mother's actions, in my judgment, both in this country and Nigeria, are consistent with her evidence that she had no idea she was involved in this strange scam, designed to put together unwanted children with desperate, childless parents. Her complete desolation when confronted with the reality, as attested to by both the police and the Guardian, further in my judgment supports her credibility.
62 What are the findings that I make based on this assessment of the evidence? Firstly, most of the primary facts are agreed and not challenged. Secondly, the mother was in a highly suggestible state, especially following the death of her disabled daughter at the end of 2009. She is also, as the Guardian points out, immersed in a Christian religious environment where miracles are not regarded as impossible. Thirdly, I am totally satisfied on an examination of all the evidence that this mother had no idea she was taking part in bogus fertility treatment, much less an elaborate and well tried system for selling unwanted babies to desperate parents in exchange for very substantial sums of money. Fourth, both she and her husband were hoodwinked and are innocent victims so far as their involvement in these matters is concerned. They neither knowingly participated in the wrongful removal of the child from her natural mother nor in the wrongful importation of her into this country.
63 The highest it can be put, as I find it, is that the mother unwittingly took part in an unorthodox adoption process surrounded by an elaborate piece of play acting.
64 Fifth, and for the avoidance of doubt, I find nothing concerning so far about the mother's mental health any more than the general practitioner does or did. It is perfectly plain the mother now fully appreciates what was going on and what she has been involved in.
65 Sixthly, on the face of it, the mother from what I know seems a good and experienced mother who has brought up her nephew impeccably and looked after her very disabled child over a very long period until her death.
66 The question now is what should be done in the light of these findings. I very much hope the local authority will now be willing to think again. I have emphasised that they have acted perfectly properly and responsibly, certainly up until the date of this hearing, but I do think it is now time for them to re-think their stance in the light of this hearing and these findings.
67 Clearly the mother and father are clearly perfectly good candidates as parents and have a very obvious moral claim to be the first people to be considered for the task of looking after O, although of course, and as they point out in their evidence, they have no particular legal claim.
68 I will consider further with counsel now what the next steps should be. As I have emphasised, I have gone out of my way not to criticise the local authority to date because I think they only did what they were bound to do. However, I do think that their stance in the light of these clear findings needs reconsideration. I cannot promise that I will refrain from criticising them if they proceed from here as if these findings had not been made.
69 The Ss are desperate to be allowed to look after this child and, in my judgment, they are at the very least entitled to be properly assessed. The Guardian has suggested a way forward, and I acknowledge that time is certainly pressing.
70 Somewhat extraordinarily at the very last moment, I was presented today with evidence from an independent reporting officer. There was no notice given to anybody that such evidence would be produced. For the sake of completeness, I have certainly read it but I do not think the independent reporting officer, Mr. I, is in any position to consider this matter properly and fully having not heard the evidence or findings and the judgment which I have just given.
71 I will conclude only by saying that these parents have shown a consistent and very high level of commitment to this child and it needs to be properly taken into account. That is my judgment. I will order that there be a transcript of the judgment, the cost of which is to be divided between the Guardian and the local authority.
MR. JUSTICE COLERIDGE:
72 The question is where do we go from here in the light of the judgment which I have just given. The local authority's instant reaction has been to apply for permission to appeal. This was a fact finding hearing. Appealing a fact finding hearing is notoriously difficult. I certainly shall not grant leave for that. If the Court of Appeal thinks there is something worth investigating, then of course they will grant the appropriate leave. Having heard the case over two days and particularly having heard the parties give evidence at very great length, I think that the prospects of appeal are very small.
73 The second application the local authority makes is for permission to notify my judgment to a variety of other parties who are not directly connected with this particular application or this child. I do not give that permission. I have no objection to them writing to these individuals in broad terms, explaining to them what their concerns are, but I do not think it will assist this child to make this into a state trial involving other organs of the government.
74 It follows from the local authority's stance that they do not consent to, much less support, any assessment of the child but an application is made by the Guardian and Mr. and Mrs. S for independent assessment by an independent social worker. It seems to me that is the sensible next step. It enables the various options for this child to be considered and so I shall make an order that such an assessment be arranged as soon as possible with the Guardian being the lead instructor.
75 So far as the costs of that assessment are concerned, at this stage – and I emphasise that – the costs of the assessment will be paid for by CAFCASS, but I anticipate that, when the whole position is clear, the costs of that assessment will be spread certainly to two and possibly three different certificates. I am informed by Mr. Paul today that there is every prospect that at last the Ss will get legal aid. If that is the case, then clearly their certificate as well will be able to shoulder some of the burden for the costs. I shall make that order but, as it were, with liberty to the Guardian to apply to spread the cost of that onto others if she wishes to at a later stage.
76 I am asked, in the light of the matters which have come to light over the last few days, to order the local authority in accordance with the recent case and precedent to provide copies of any communications they have had with third parties in relation to these matters, in particular the independent reviewing officer and/or the police and/or any other government agency. I think, in the spirit and interests of openness, that is clearly a proper application to make and I shall so order.
77 The question arises as to contact. The Guardian, whilst in principle was agreeable, is now quite understandably being cautious in case the assessment of Mr. and Mrs. S shows at an early stage that they are not suitable. She would prefer, before any contact is resumed, for at least the first steps to be taken in the assessment process with a view to the matter being looked at again after the preliminary report has been prepared.
78 I think that is a sensible and precautious way of proceeding because I have a completely open mind as to where this child should end up and if it is indeed the case that, at an early stage, it becomes apparent that the Ss are not likely to pass muster at the assessment, then it is not fair on O and nor is it fair on them to put them through the strain and stress of re-introduction.
79 What I shall say is that I would like this matter to be brought back in front of me in the third week of January - I would do it before but there are difficulties in my own diary before then – for directions for 30 minutes, by arrangement between the parties and with the Clerk of the Rules, for me to check on progress. If I agree with one thing that the local authority is concerned about, it is most important that this case proceeds now with every possible speed.
80 So far as contact is concerned, I will look at contact again if need be and in the absence of agreement at the next hearing in January with a view, if there is no impediment, to reinstating it in some form or another. In the meantime, there should be indirect contact. The Ss should be provided with photographs of O because it is most important that their own feelings towards this child are also nurtured, as they may well in due course be the carers for this child. So far as the child is concerned, she will come to no harm if there is no contact for another few weeks. Anything else?
MISS MERRIAM: By the third week, do you mean the week of the 23rd?
MR. JUSTICE COLERIDGE: No. I mean the week of 16 January. Can I ask you to arrange between yourselves a convenient date when everybody is available, and in particular the guardian is available?
MISS WATSON: My Lord, can I ask you about the assessment? Firstly, we would need to know the timescale of any assessment and, secondly, is it going to be an adoption type assessment? We need to know what sort of assessment this is going to be.
MR. JUSTICE COLERIDGE: A parenting assessment in the first place, I think. Anything else? Thank you all very much for your help.