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This judgment is being handed down in private on 23 January 2014. It consists of 14 pages and has been signed and dated by the judge.
The Judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
||Neutral Citation Number:  EWHC 75 (Fam)
||Case No: UX13C00025
IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE HOGG
|| THE LONDON BOROUGH OF HILLINGDON
||- and -
By the child's Guardian, Julie Green
Mr Ian Griffin Counsel for the Applicant Local Authority
Mr Dermot Casey Counsel for the 1st and 2nd Respondents
Ms Deirdre Fottrell Counsel for the Guardian
Ms Fiona Paterson Counsel for the Intervenor
Hearing dates: 9th to 13th, 16th and 18th December 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
MRS JUSTICE HOGG :
- The proceedings before me are care proceedings brought by the London Borough of Hillingdon. They relate to a little girl A who it is said was born in Lagos on 30 April 2012.
- This is a fact finding hearing to establish whether or not A is the natural, biological child of the putative parents, and if not what is their belief and understanding as to the circumstances of her birth.
- The putative parents both come from Nigeria having relocated here in 2006. Recently they became British Citizens.
- The parents, as I shall call them for the purposes of this Judgment, were married in 2001 and wanted to start a family straight away. They were then both about 33; they are now both about 45. Sadly they were unable to conceive a baby. It was discovered while they were still living in Nigeria that the mother suffered from fibroids. She underwent surgery for their removal in the hope that this would enable her to conceive.
- Sadly conception did not occur.
- They came here in 2006 and sought the assistance of the local General Practitioner. They underwent various tests. The father was found to have a low sperm count, for which he was given medication, and the mother was found to have further fibroids. She was given treatment to reduce them. In 2005 she underwent IVF treatment for which they had to pay £5,000, being ineligible under the NHS. In part the treatment was a success as the mother became pregnant, but at a very early stage she miscarried.
- Later in 2010 she was having further difficulties. It was discovered that the fibroids had returned and multiplied in number. Surgery was offered without which she was advised she would not conceive, but even with surgery there was only a 50:50 chance of conception.
- The mother was disheartened. She had undergone surgery, laser treatment and IVF treatment, all of which was painful and emotionally draining. She felt she could not face further surgery without some greater chance she would be able to conceive. She lost confidence in the NHS and treatment offered.
- It is clear to me that by 2010/2011 the parents were deeply saddened and distressed that after 9/10 years of trying, and at great financial cost to them, they were still without their own baby.
- Sometime in about 2010 a friend of the father from University days in Nigeria asked generally how they were, and during the conversation the lack of a baby was discussed. The friend told the father that he had another friend in Lagos and that friend and his wife had had similar problems, but recently had undergone some herbal treatment in Nigeria as a result of which the wife was then pregnant with twins, and that the father's friend could put them in touch with his other friend.
- The father told the mother about this. Initially she was somewhat dismissive but came round to considering the possibility of undergoing such treatment.
- In due course the mother and father contacted the couple, Mr and Mrs Ediare, who live in Lagos. The two couples did not know each other and had never met. Mrs Ediare had given birth to twins following 'herbal treatment'. The father told me that once he knew there was evidence, being the arrival of the twins, he accepted the idea of trying herbal treatment. The mother also decided it was something she wished to undergo. The Ediares provided the herbalists contact details. In about February 2011 the mother, with the father listening in, contacted the herbalist and spoke to him on the telephone about the herbal treatment on offer.
- His name is Dr Cletus Okolo. According to his card he describes himself as "Orthopaedic/General Herbal Home" giving an address in Delta State, Nigeria.
- In May 2011 having decided to try the herbal treatment the mother flew to Nigeria at the end of the month. She had made an appointment and on 31 May 2011 she visited the Treatment Centre at an address in Lagos. There, by appointment, she met Dr Okolo's assistant, a woman called Joy, who examined her abdomen and prescribed three herbs, giving instructions as to their use. There were two herbs for the mother and one for the father.
- On her return to London and following Joy's instructions the mother took the first of the herbs for her, which she had been told would move her fibroids to one side; and the father took the herbs for him. Both took his/her respective herbs over a period of 30 days. The herbs were initially put into water and allowed to infuse, and the infused water then drunk. The parents had been told to abstain from sexual intercourse during this period. After 30 days the mother started to take the second herb prescribed for her. Again, it had been infused in water and she drank the infusion every morning until the day of delivery.
- Over the next few weeks and months the mother noticed changes in her body. She ceased to menstruate; she had only one period after her return to London in early June, may be a bit later. Her ankles and legs became swollen, her face, cheeks and nose swelled up, her arms, abdomen and body became swollen. She told me she became large. From a dress size 12/14 she became a size 16/18. She had to buy larger clothes and wore baggy, loose tops. She also bought maternity jeans, but was able to use larger but ordinary leggings, not maternity leggings.
- Joy had told the mother that if she pursued the herbal treatment she was not to seek orthodox/western medical treatment. Joy told the mother that the treatment was both herbal and spiritual and that the combination was so powerful as to render the foetus invisible on any scan.
- As a result neither parent thought it necessary for the mother to seek medical advice from their General Practitioner or any ante-natal care. They believed what Joy had said, and adhered strictly to her instructions.
- The mother kept in contact with Joy by telephone. She informed Joy of the change in her body, and Joy told her she was pregnant, to continue taking the herbal infusion and to travel to Lagos as soon as she was able to do so.
- The mother travelled to Lagos in February 2012 to be examined by Joy at the same 'Treatment Centre'. Joy examined her abdomen and confirmed the pregnancy. She said the mother was seven months pregnant and the baby was developing well.
- Joy also told the mother that she had to deliver the baby in Nigeria and not in London. Joy said that the mother would not be able to deliver the child unless she took a third herb which would trigger labour. Without that third herb she would not be able to give birth and the child would remain inside her for ever.
- The mother returned to London delighted the pregnancy had been confirmed and that she would soon be a mother.
- On 8 March 2012 she and the father visited their General Practitioner, Dr R, to tell him that she was by then seven and a half months pregnant, that she had pursued herbal treatment to move the fibroids and to enable conception, and that she would be returning to Lagos to give birth.
- Dr R saw her abdomen and observed that she looked about seven months pregnant, and possibly felt her abdomen. In evidence he confirmed he accepted from his brief observation and examination, and from what he had been told that she was pregnant. He also observed that the mother looked much happier than when he had previously seen her. He was pleased for the couple because he had known they dearly wanted a child and IVF had not been successful. He admits that in retrospect he should have tried to find the foetal heart and asked her about any ante-natal care and more about her plans for delivery in Nigeria. In this he accepts that he assumed too much and allowed his professional mind to be clouded by his real delight at the pregnancy. He told me he had no suspicion that the mother was not pregnant, and I accept that evidence.
- The mother returned to Dr R on 20 March 2012 to obtain a maternity certificate which the doctor completed. On that date she told Dr R her expected date of delivery was 25 April 2012, and that she would travel to Nigeria for the birth. He did not examine her, but noted her enlarged abdomen, and relied upon what the mother told him.
- The mother again returned to the surgery on 11 April 2012 seeking a sickness certificate. She saw another doctor.
- Both parents flew to Nigeria on about 22 April. On 24 April the mother visited Joy at the 'Treatment Centre' in Lagos. It was arranged that she would return to give birth on 30 April 2012.
- The cost of the herbal treatment and delivery of the child was about £4,500. The parents tell me that they paid the total amount in local currency, Naira, and in cash. The father's sister contributed a significant sum in cash. The father told me this came from monies which from time to time he sent home to Nigeria. There are no clear receipts and the only available document is one purporting to be signed by Dr Okolo: "Treatment successful, patient delivered of a baby girl. All fees fully paid". "God's doing". I do not doubt that the parents paid a sum in the region of £4,500.
- On 30 April 2012 the mother took the last dose of the second herb in the morning and then she and the father travelled to the 'Treatment Centre'. By this time they had met and were staying with Mr and Mrs Ediare in their home in Lagos. At the 'Treatment Centre' they were greeted by Joy. The mother was given another infused drink, the 'third' herb. It tasted bitter and was brown in colour. She was made to walk up and down the corridor of the centre. In due course she needed to go to the lavatory, after which she was led into a room and the door was shut. The father remained in the corridor: he did not witness the birth, but in due course heard a baby cry.
- Joy and another lady to help were in the room with the mother. It was a small room, no windows, and the door was shut. The mother described the delivery to me. She was told to lie down on the floor and to push. She did not experience much pain, which she attributed to the herb she had been given. In due course she felt the baby's head, and the baby's body emerging and something sliding against her leg. She was lying on her back with her knees up. She could not see what was happening. She then passed the placenta, after which she was allowed to get up from the floor and the father was allowed into the room. She thought the whole process from when she drank the last infusion until the birth was about 1 hour 45 minutes. The father thought it took about 20 minutes after the mother went into the room leaving him outside. Both agreed it was not a prolonged labour.
- When the father came in he saw the baby on a bed and the placenta, which in accordance with tradition was given to him in a carrier bag for him to dispose of. He also saw the umbilical cord. Initially he told me he saw it "being" cut, later he said it "had been" cut.
- The mother was allowed to rest for a couple of hours and then the new family left to go back to the Ediares' home. They were not given any instructions as to how to care for the baby, who the parents were told was small and weighed 2 Kgs. No one told them she may have difficulty in feeding. No one checked to see whether she was able to breast feed; nor was the mother given any advice for herself. She did not complain of any pain or soreness, which one might expect after giving birth.
- On arrival at the Ediares' home the maternal grandmother gave the baby a bath in accordance with tradition. The mother attempted to breast feed but she had little or no milk. The baby was fed water and glucose overnight before the parents were able to purchase formula SMA milk. Thereafter she was largely fed on SMA formula in accordance with the instructions. It is not clear to me whether breast feeding was ever properly established. If it was it was never really successful and the child was largely fed on formula.
- The father had to return to London to his employment and left the mother and baby in Nigeria. Their plan had been for the mother and baby to follow as soon as the baby had been granted a visa. Unfortunately from their perspective the British Immigration Authorities rejected the application for a visa, and thus the mother with A had to remain in Nigeria. The father appealed the refusal and in due course on 1 March 2013 the appeal was allowed. The visa then had to be formally obtained before they could travel. Thus the mother and A travelled to London on 27 May 2013.
- Following their arrival the British Immigration and Police Authorities informed the Local Authority of their concern that A was not the natural child of the parents and had been wrongfully brought into this country. Child care investigations commenced.
- On 11 July 2013 the police arrested the parents and took A into Police Protection; she was placed in foster care under Section 20 of the Children Act and has remained in foster care ever since, with regular and frequent supervised contact with both parents where a close and affectionate bond between A and the parents has been observed. Unfortunately it has also been observed while in foster care that A is developmentally delayed, the cause for which is still being investigated.
- DNA testing was undertaken with both parents co-operation. The results became known on 31 July 2013 which the parents say caused them considerable dismay and shock. Cellmark carried out the DNA testing and reported that neither the mother nor the father is the biological parent of A. The parents struggle with these results and seek to say, on advice from Joy in Lagos, that the combination of spiritual and herbal treatments is so powerful as to be able to change DNA, and thus there would be no match.
- The mother says that she learnt of this shortly before her return to this country when she and Mrs Ediare spoke on the telephone to Joy. According to the mother she had heard on the radio or television of an American couple who had undergone similar herbal treatment as herself, had had a baby but had encountered difficulties with the American Immigration Authorities as the DNA of their baby did not match either of them. The mother was concerned to learn this story, wondered if it would apply to her and A, and consulted Joy.
- During this hearing the Local Authority and Guardian wanted to cross-examine Dr Okolo. Arrangements were made for a video link to Lagos to enable Dr Okolo to give evidence to me. Although he agreed to attend on the morning in question, and despite his assurances he was on his way to the video link, he never attended. Later when attempts to arrange an alternative time for him his mobile was switched off. I can only assume that for his own reasons he decided not to give evidence and to mislead about his intentions to attend. I regard his failure to attend as indicative of deliberate wrong-doing on his behalf, and his unwillingness to be questioned about it.
- There is no evidence before me to say that the results of the DNA testing was wrong or likely to be wrong.
- I do not accept the explanation of the parents that the spiritual and herbal treatments were so powerful as to alter the DNA results.
- On that basis I have to accept the validity of the results and find that A is not the biological child of the putative parents.
- The consequence of this is there has been a fraudulent passing off of this little girl as being the natural daughter of the parents. At some point when she was newly born she must have lost or been removed from her mother in circumstances about which there is no available information.
- The issue I have to decide is not whose baby is A because I have no evidence as to that, but how did she come into the care of the putative parents? Were they knowing parties to an elaborate fraud and charade upon the British Immigration Authorities and now parties to an attempted fraud on this Court, or are they the victims of an elaborate fraud wrought by Dr Okolo, Joy and /or others unknown?
- At first blush the immediate reaction of the ordinary man on the proverbial Clapham omnibus would no doubt be "don't be daft it's a fraud, they knew it". Against that there have been a number of cases before the Family Division with similar facts, being an infertile and desperate couple undergo some form of alternative treatment in Nigeria with a baby appearing, where it has been held that the 'putative parents were victims of a cruel and wicked fraud'. The "parents" in those cases were of Nigerian background, aware of the existence of traditional 'medicine'. Intelligent, educated people who held deep Christian spiritual faith and having failed to conceive a baby with the assistance of modern day medicine and science were driven to try alternative methods. In those cases sizeable sums of money were paid to those who provided the treatment.
- According to the Internet in October 2013 the BBC New Service carried an item that 'Child Protection organisations, Cafcass, Association of Directors of Children's Services and Children and Families Across Borders have issued guidance to all social workers in the UK to help them recognise signs of "staged fake births". The item said that a number of cases had been detected by the British consulate in Lagos.
- There are other newspaper or media items on the internet relating to "baby farms" and "miracle" births in Nigeria.
- The Local Authority and the Guardian are deeply suspicious that the 'mother' and 'father' in this case are and were aware that A is not their natural child, and they wrongfully attempted to pass her off as their daughter, and have concocted a story to deceive others into believing she is their child.
- I have to consider this case on its own circumstances in the knowledge that there have been cases before this Court when "parents" have been found to be victims, despite what the man on the Clapham omnibus might think, or what may be found on the internet. Each case must stand on its own.
- The standard of proof I have to apply is that of the "balance of probabilities". Is it more likely than not is the question?
- The 'parents' before me are of Nigerian origins and aware of their culture and of traditional herbal methods of healing illness and other medical difficulties. They are also religious and committed Christians, albeit not of one of the main stream Churches. They tell me there is a God, that there is a spiritual being and for them it is their faith, and they are guided and influenced by it. The father referred to praying whilst the mother was giving birth.
- They are intelligent, educated, hard working people. Indeed, during the course of this hearing, which became protracted, the father was taking examinations in connection with his course for a Masters Degree. His first degree is in chemical engineering, although he is not currently employed in that industry.
- They tell me they are responsible people who would not seek to buy a baby from some sort of baby farm or agency; they would not want to be part of such an activity.
- It is without doubt they encountered enormous difficulty in conceiving a child of their own, and in this context I have great sympathy for them. It must have been a matter of great sadness and disappointment for them.
- They have tried modern medical techniques to have a child; that had not succeeded. Age was against the mother and time was running out. They say they were told of successful herbal treatment for Mr and Mrs Ediare which convinced them to attempt the same themselves. The treatment cost a significant sum for them and their relatives: they are not rich people. I have not had the opportunity to hear from either Mr or Mrs Ediare and thus do not know their story.
- Despite their education and intelligence they are struggling with the result of the DNA test result. They do not challenge the result that A is shown not to be their biological child. Both say he/she still believes that A is their natural child. They still believe that the spiritual and herbal treatments have affected the DNA. It is clearly a challenge to them both, and one they each find difficult to explain. They say they rely on the information Joy told them about the power of the treatment. To them they say it is a matter of belief, they can give no other explanation.
- It was also suggested by the Local Authority that if the "parents" were parties to the deception so may be their GP, Dr R, who I heard give evidence. I am giving this Judgment in the knowledge that he is being investigated by the General Medical Council and the Metropolitan Police in respect of his involvement with these "parents", and possible "trafficking" of a child.
- However, having heard his evidence neither the Local Authority nor the Guardian seek findings against him that he was 'knowingly a party to a scam or fraud'. The doctor concedes in his statements and his oral evidence that although the mother looked pregnant and said she was 7 months pregnant he should have examined her on his couch, palpitated her abdomen, sought the foetal heart, enquired and given her advice about ante-natal care scans, and perhaps even advised her against flying back to Nigeria in the later stages of the pregnancy. He has accepted his own shortcomings. He also accepts on reflection that after he received the letter from the GMC dated 25 January 2013 he should not have made contact with the father and seen him on two or if not three occasions, or in the father's own home. His explanation for doing so was he panicked. The letter had caused him great distress, worry and anxiety; he could not sleep and could not concentrate. He was aware that the investigation by the GMC could eventually lead to him being struck off the Register. When he contacted the father he wanted reassurance that the mother had been pregnant and the baby was theirs. The father was able to give him that reassurance on 8 February at the meeting in the father's home. Being reassured Dr R calmed down. He said there was no further contact by him to the father, and he heard no more from the father until he telephoned the surgery to say the mother and baby had arrived in this country.
- Dr R was hard pressed by counsel for the Local Authority, and to a lesser extent the Guardian. Although no findings are now sought against him it is only right that I record my own view of him, and his involvement in this matter.
- At the conclusion of his evidence I formed a view of Dr R. I thought he is kindly and well meaning but a very busy practitioner, and was happy and pleased for the parents that they had finally been able to conceive a baby. He has some knowledge that there are herbs which have medicinal properties, and was prepared to accept that the mother had received herbal treatment which had been able to reduce her fibroids sufficiently to enable her to conceive. He was perhaps too accepting of the mother's account of the treatment and wish to travel back to Nigeria for the birth. I accepted his openness in the concessions he made in his evidence. Maybe his pleasure and happiness for the couple clouded his mind and detracted from a professional approach. I was clear in my own view that whatever might be the truth concerning the parents' involvement in the scam or fraud he was not a knowing or willing party to it.
- I accept that he may yet be subject to some criticism from his professional body, and may have to face further investigation and enquiry by them as to his care and conduct. It is not for me to interfere and comment upon that.
- From the perspective of this Court findings were not sought against him, and I make no findings against him. In my view there was no evidence to indicate that he was knowingly involved in any wrongdoing, or illegal act, scam or fraud relating to the conception, pregnancy, birth passing off A as the natural child on the parents, or her arrival in this country.
- At the conclusion of the evidence both the Local Authority and the Guardian, who had an 'open' mind at the commencement of this hearing, urge me to find that the parents were knowing and willing parties to the fraud; that their account is a fiction in its entirety to provide an explanation of A's presence in their care and now in this country; that they knowingly acted wrongfully and unlawfully.
- Although I have said if they are innocent of wrong doing they are victims of a scam and fraud, the parents themselves do not present themselves as victims. They say still that in some way they believe A is their natural child, notwithstanding the DNA results.
- What is clear to me having found that she is not their biological child but the child of another mother and father, and having been removed from her mother very soon after her birth is that A certainly is the victim of wrongdoing and illegality, and very possibly her mother as well. A is to all intents and purposes an orphan about whom and the circumstances of her birth and arrival into the putative mother's care there is no information available to this Court of to the Local Authority or Guardian. She has been lost to her biological family and without knowledge or information there is no possibility of restoring her to her family and culture. She is without doubt a victim.
- The Local Authority comments that the parents' evidence was 'littered' with inconsistency, that both were evasive, embellishing their evidence, changing it at will and was completely implausible.
- The Guardian's view of their evidence is similar in respect of the herbal treatment and birth, describing them as contradictory and implausible. She said the parents were contradictory at times with each other, and inconsistent in their respective interviews to the police and evidence to the Court, and at times both were evasive and uncertain and appeared to be obstructive in some of their cross-examination.
- Both the Local Authority and Guardian state, and rely upon, the parents' seemingly lack of empathy and understanding of A's position having been removed from her biological mother and brought to this country.
- In reality this was a fact-finding hearing about the circumstances in which A came to be in the parents' care. Little time was spent on their feelings for A, and while their comments in the context of the fact-finding hearing may have lacked some sense of empathy for her the contact notes and observations indicate they have a warm, loving relationship with her and she responds to them. There will be a further hearing when her future welfare will be considered, and currently a parenting assessment is being undertaken which when completed more will become apparent concerning the parents' understanding and insight.
- Much has been made of the fact that the mother had no ante-natal care, no scans or even took a simple pregnancy test. She is accused of 'embellishing' the physical changes while pregnant. Admittedly she had not gone into great detail to the police. As a result I asked her to describe her physical symptoms and any changes she experienced. She answered me and it is those answers which have been described as 'embellishments'.
- Much has been made of the fact that she flew to Nigeria twice whilst pregnant; once there and back in February when she said she was 7 months pregnant, and again in April when she was almost due. On no occasion was she challenged by airline staff. The father said the tickets in April were booked on line and at no time were they asked about it.
- The implication the Local Authority and Guardian seek to draw is that she did not look pregnant, because she was not pregnant. No one asked her whether she checked herself in with a machine, or whether she went to a desk; no one asked her what she was wearing in either February or April.
- Despite that Dr R and his junior doctor whose statement to the police I have read, both say that she appeared from their respective observations to be pregnant. When he saw her in March Dr R accepted her statement she was seven plus months pregnant because he saw a big tummy, and may even have touched it, although did not in any way feel for the baby. The junior doctor saw her in April.
- The Local Authority has raised the fact that there are no medical notes, no records of any consultations or of the birth, no records relating to A's condition at birth, and has described the mother's description of her birth as farcical. In my view the simple explanation for there being no such records and for the mother's strange account of the birth is that she never gave birth to A.
- Nothing is known about Dr Okolo, Joy or his herbal home in Delta State, or Treatment Centre in Lagos, other than an address and the somewhat confusing descriptions of the centre from the parents. It is not known whether Dr Okolo is a medical doctor, or even a doctor in any other field, or whether it is a self given term by the man himself. Nothing is known about his qualifications and nothing is known about Joy. Neither gave evidence, Dr Okolo particularly failing to arrive for the video link despite his assurances.
- However, the parents produced a business card and appointment card giving dates and treatment provided and signatures of Dr Okolo with the words 'God's doing'.
- I accept the parent's evidence at times was contradictory and inconsistent, but throughout their accounts and evidence there has been a consistent theme. This was herbal and spiritual treatment. They followed the instructions they were given to the letter, namely:
1. They were to take the herbs as instructed;
2. They were not to seek orthodox western, modern medical treatment whilst taking the herbal treatment. They were told that if she went for a scan the power of the treatment was such the baby would not be seen on the scan;
3. The mother could not give birth in London, she had to travel to Lagos for the birth as she would be unable to deliver the child at all without the administration of the third and final herb.
- I accept that the parents' account is strange to say the least. They have a faith, they are intelligent and educated. They are both hard working and no criticism has been levelled at their life style. They were desperate to have a child of their own. I ponder did that desperation lead them to do something unlawful and fundamentally wrong by buying a baby who would have been removed probably at birth from the mother, or did that desperation lead them into the hands of wicked fraudsters.
- On their behalf Mr Casey has said there is some corroboration of their account. The stamp dates in the mother's passport are consistent with the dates on Dr Okolo's appointment and treatment card.
- The father on 29 January 2013 co-operated with Dr R in coming to the surgery at the doctor's request to discuss the recent letter from the GMC. With him the father brought a bag of herbs for the doctor to see. Later in July the police removed bags containing three different herbs from the family home which to date have been partially analysed by scientists at Kew Gardens. Regrettably the analysis has not produced evidence of the properties of the drugs and whether any would have been able to reduce the mother's fibroids or would have in some way caused the mother's abdomen and body to swell, so as to appear she was pregnant. The final herb which the mother says she took to trigger labour was taken in Lagos and was never brought to London.
- In July also the parents co-operated with the request for DNA testing, which had they known for certain would have proved they were not A's parents they may have resisted or prevaricated about.
- What is striking in their evidence is that the mother attended the surgery three times in March and April when she says she was 7 plus months pregnant and approaching her due date. If the mother had known that she was not in fact pregnant this was an extraordinary action, not just once but three times. It would have been very risky because a doctor may have wanted to examine her, and the truth would have been ascertained relatively easily and quickly, and had she refused an examination the doctors may well have been sufficiently concerned to raise child protection issues with the Local Authority. Had she known she was not pregnant it would have been more prudent to stay away and if necessary forego any maternity benefits or sick leave. Or, I ask myself did she go to see the doctors with a form of arrogance and bluster thinking she could bluff and delude them.
- I have seen both parents in Court over a number of days. They certainly do not give the appearance of people who can assert and bluster their way through difficult situations.
- In the end, having considered all the evidence before me and notwithstanding the inconsistencies in their account I am driven to conclude that in some way they allowed themselves to be duped by fraudsters. They so much wanted a baby. They come from Nigeria with the heritage of traditional herbal medicine, and allowed themselves to fall under the spell of the herbalists believing what was said to the mother, and acting faithfully upon the instructions given to them. Contrary to the submissions of the Local Authority and Guardian I do not find the parents were wilfully and knowingly involved with or parties to a wrongful removal of A from her mother, or that they cynically 'bought' a baby. Throughout this evidence the father referred to 'a process' they went through. I accept there was a process, a charade in which they were unknowing players, in which they were deceived.
- As a result the Local Authority has failed to make out its case against the parents, but the fact remains A is effectively an orphan. There is no one in this country who has Parental Responsibility for her, and no information as to her birth, her parentage or background. Nor is it known what happened to her mother, by whom she was removed from her mother, or the exact date and place of birth or her circumstances until she arrived at the side of 'the mother'. The Threshold Criteria required by Section 31 of the Children Act has clearly been crossed in circumstances and at the hands of persons unknown.
- As this has been a fact finding hearing and the threshold criteria has been met there will be a welfare hearing which has been fixed for 17 March 2013. I have already discussed the relevant directions for that hearing with counsel and an order is to be drawn up with those directions.
- I am most grateful, as I believe the parents to be, for the representation provided to them by their solicitor Miss Elizabeth Fitzpatrick of IBB Solicitors and Mr Dermot Casey of Counsel, both of whom have acted pro bono, and in a hearing which lasted considerably longer than listed. I am grateful to both and for the careful and able manner in which Mr Casey performed his duties.
- This was a hearing of some complexity. It may be the welfare hearing will be as difficult and complex, and certainly a very important one for the child and parents.
- They were joined as parties in what clearly was always going to be a difficult and complex case, and they lack the resources to fund their representation.
- I understand that they encountered difficulty in obtaining public funding from The Legal Aid Board. I can only reiterate what Mr Justice Coleridge said in Re D (Nigerian Fertility Clinic) 2013 2FLR 1417 at paragraph 38 urging the Board to speed up their processes so that parties in such difficult cases can receive proper legal representation and advice.
- Finally, given the late stage of the term I am sending this Judgment out by e-mail to Counsel, including Counsel for Dr R. I intend to "hand it down" formally at the directions hearing in late January 2014. Although it may be described as a 'Draft' Judgment it is my Judgment the terms of which, particularly my findings and decision on the facts will remain, and despite any typographical errors it may be used and disseminated to the parties and intervener as if it had been 'handed down".
- Before it is handed down I will as I have indicated anonymise A's and Dr R's name, referring to her as A and to him as Dr R. I intend to identify the Local Authority, Dr Okolo and Joy.
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