England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2011

The Hon. Mrs Justice Parker, DBE :

1. This is a hearing in care proceedings concerning a little girl now known only as E. The applicant Local Authority is Lambeth. Mr and Mrs O, who claim to be her parents, were joined as parties by His Honour Judge Hayward Smith QC on 17 June 2011 and have been separately represented in these proceedings. E is represented by her guardian.
2. At the final directions hearing on 1 September 2011 Holman J, when setting this case down for 5 days for fact-finding, directed that "if time permits, the court may also make any appropriate welfare or outcome decisions in the light of the facts found."
3. My initial feeling that this was a relaxed time estimate turned out to be incorrect. I had hoped to give judgment on Thursday 10 November 2011. In the event, I decided that I required further evidence and that I would hand down a written judgment for consideration by the parties before a short hearing on Thursday 17 November to consider what orders should be made. I have not been asked to rule on threshold: to my mind it is amply made out for a number of reasons which I shall describe in this judgment.
4. According to the Os, E was born to Mrs O at the Revival Specialist Hospital and Maternity, ("the Clinic"), director Dr Odimba, situated about an hour's drive outside Port Harcourt in Southern Nigeria, on 9 November 2010. Neither of those facts has been established to my satisfaction. I have not seen E's birth certificate: it is with the police. I am told that it is not thought to be genuine. In any event a birth certificate is only as good as the information on which it has been obtained. For reasons which will appear from this judgment, I have good reasons to doubt the authenticity and accuracy of any information from the Clinic or about E's birth. Dr Odimba has not been called to give evidence. I can place no weight on a letter and a document purporting to describe E's birth dated August 2011 said to emanate from him.
5. The findings sought are:

i) Mr and Mrs O are not the birth parents of E;

ii) they are not biologically related to her;

iii) she was born in Nigeria in or about November 2010;

iv) she was brought into the UK by Mrs O on or about 23^rd December 2010; and

v) Mrs O falsely represented that she was the mother of E in order to obtain travel documents to bring her to the UK on that date.

6. Mr and Mrs O assert in the face of three DNA tests and much other evidence that they are the parents of E. In his evidence Mr O asked me to say that non-parentage was not established beyond reasonable doubt: he said that he would not accept that E was not their child unless her real parents were produced. Mrs O did not say this, and nor was it said on her behalf. I am dealing with a civil case and the standard of proof is the balance of probabilities. But I also direct myself that:

i) if in fact I am satisfied beyond reasonable doubt as well as on the balance of probabilities I should say so, particularly if that is the standard which Mr O says he requires;

ii) if I find a party to have lied about a particular issue that does not necessarily mean that they have lied about others: applying the principles in R v Lucas (Ruth) [1981] QB 720, A (A Child) (No 2) [2011] EWCA Civ 12;

iii) this is not a case where as the Supreme Court stated in Kernott v Jones [2011] UKSC 53 (a case where the court had to impute intention, as opposed to necessarily drawing an inference)… "there will continue to be many difficult cases in which the court has to reach a conclusion on sparse and conflicting evidence. It is the court's duty to reach a decision on even the most difficult case. As the deputy judge said … 'that is what courts are for.'";

iv) in this type of case it may be appropriate, if I cannot make a distinct finding, to set out the range or potential or spectrum of possibilities: it is not my duty in this context to 'strain to make a finding' particularly where I am satisfied that I have not been told the whole truth;

v) it may be helpful for me, if it illuminates my thought processes, and is not inconsistent with the findings that I do make, for the judgment to include observations that may not go to the fact-finding hearing, but which may be of relevance to the final stage of the proceedings, when considering, for instance, welfare : A (A Child) (No 2) [2011] EWCA Civ 12;

vi) even if I am not asked to make a finding, I am entitled within the context of child welfare proceedings to come to any other conclusion which I consider appropriate: although I ought to give proper notice to the parties of potential findings sought, and the parties ought to be given a proper opportunity to adduce evidence.

7. With regard to findings i) and ii), I am entirely satisfied on the balance of probabilities and indeed, beyond any reasonable doubt; and scientific and other evidence conclusively establishes, that (i) E is not the biological child of the Os; (ii) they are not related to her in any way.
8. With regard to finding (iii) I am not satisfied that E was born at the clinic or in Nigeria on 9 November 2010. E is African by appearance and I assume that she was born in Africa, but I cannot say where. Providing that digital photographs of Mrs O holding a small child outside the Clinic (identified by the board outside it) are accurately dated I am prepared to accept that E came into her care no later than 9 November 2010. I do not know how old she was at that time although obviously she was quite a small baby.
9. With regard to finding (iv) there is nothing to contradict Mrs O's account that she brought E into the UK on 23^rd December 2010 and I am prepared to accept this. Mrs O applied for an Entry Clearance Certificate for E at the British High Commission in Lagos on 1^st December 2010 granted on 15^th December 2010.
10. With regard to finding (v), since I have found that E is not the biological child of Mr and Mrs O it follows that Mrs O must have falsely represented that E was her child: the extent to which she did so knowingly is the most difficult issue in these proceedings, as is the question of what further assessment, if any, I should direct.

The background

11. Mr and Mrs O come from the Ibo community in Southern Nigeria. They say, and indeed I know, that this is a vibrant community with a distinct history and a strong ethnic and cultural identity: see for instance the novels of the internationally acclaimed author Chinua Achebe. Many Ibos in this country (and I assume others) are in the professions: law, medicine, accountancy, and in the civil service and the arts. As well as more recent emigrants many people originally of Ibo descent live in Europe and the New World.
12. Mr O has German citizenship. Mr O works at a London hospital as a technician sterilising medical instruments. Mrs O works as a care assistant and is studying social work. They are educated people and both in my assessment intelligent. They are devout and committed Christians.
13. Mrs O came here as a visitor in 2005: she was ill with tuberculosis and she was diagnosed as being HIV positive. Her first application to remain here was made on the basis that she could not obtain effective treatment for HIV in Nigeria. Mr and Mrs O were introduced through an Ibo community association in London and married in 2008: Mrs O now has rights to remain based on her marriage to an EU citizen.
14. In 2008 Mrs O had an ectopic pregnancy which required her to undergo surgery. The medical records show a couple who were anxious about further conception. They took advice about fertility. Mr O was to have his sperm count checked: I do not know whether this happened. Mrs O's medical notes show that from mid 2009 onwards she said that she believed that she was pregnant and she had a number of pregnancy tests, all negative, and scans which showed no pregnancy. In the witness box, and in contrast with her statement, and other accounts attributed to her which essentially reflected the medical notes, she denied the accuracy of many of the records.
15. Mrs O went to Nigeria in early August 2010. She says that she was then pregnant. The account of Mr and Mrs O as to why she went, what her intention was as to medical treatment there, and whether she was going to come back here to have the baby delivered, or even whether she believed that she was pregnant, has not been easy to discern, and has not been consistent.
16. Whilst in Nigeria Mrs O is said to have visited the Clinic and to have received some treatment there connected with her purported pregnancy. Why she did so, and what she was hoping to achieve, has not been easy to discern.
17. Mrs O says that she gave birth to E at that hospital on 9 November 2010. Information about the birth is scant: I will deal with this further when I come to examine the evidence.
18. On 1 December 2010 Mrs O applied for an Entry Clearance Certificate (ECC) to permit her to bring E into the UK, being unable to rely on Mr O's EU passport. The Entry Clearance Officer (ECO) was originally suspicious but was persuaded by Mrs O that this was indeed her child and did not ask for any further investigations. The ECC was granted on 15 December. I see no reason to dispute that E was brought in on 23 December 2010.
19. At some point after they arrived in December 2010 E's blood was taken by the Caldecott Clinic, which treats Mrs O for HIV, for tests to see whether she had contracted HIV. There is unclarity in the available evidence as to whether this was at Mrs O's instigation, whether she had attended the Caldecott to seek drug therapy for E, and when the test results were received.
20. It was not until March 2011 that the Caldecott Clinic appreciated that the results showed not only that E was not HIV positive, but also that she had no antibodies. This was thought to be unprecedented: since it is at least very highly unlikely, if not impossible, that a young infant will not have antibodies derived from the mother (as opposed to actually having contracted the infection) which some infants of HIV positive mothers escape.
21. The treating doctor advised a DNA test. When performed it excluded both Mr and Mrs O from any relationship with E. The police were informed and conducted interviews in March and May 2011, suspecting child trafficking. The first DNA tests showed no relationship. Mr and Mrs O disputed the result of the DNA tests, challenging their integrity. It was asserted that the police were prevented from passing the test results to the Local Authority relying on Lewisham London Borough Council v D (Police Disclosure of DNA Sample to Local Authority) [2011] 1 FLR 908, on different facts (I do not agree necessarily that it applies in a child protection case) and it is asserted that Mr and Mrs O were generally rather obstructive and angry with the police. At a second interview, on advice, they gave essentially no comment interviews. Mr and Mrs O have not been charged with any offence.
22. Care proceedings were started and E was removed from the care of Mr and Mrs O. A second DNA test also showed no genetic relationship. This was also challenged by Mr and Mrs O.
23. Contact was terminated, and the Family Proceedings Court ordered removal of the 'O' surname from E's birth certificate of its own motion. At a hearing in August 2011 Miss Russell QC sitting as a Deputy High Court Judge refused to reinstate contact. She directed a psychiatric report on Mrs O, which has been provided by Dr Chike Okocha.
24. At a directions hearing in September 2011 Holman J. set the case down for a 5 day fact finding hearing. He directed a third DNA test. He also directed a report of a consultant obstetrician and gynaecologist to assess the likelihood of Mrs O having given birth in the past year, and Mr Christopher Naylor has reported on this. Holman J. also gave permission for the mother to file and serve any evidence upon which she relied from Nigeria, the evidence to be taken by video link.
25. Holman J. ordered that the local authority take all steps to identify the true biological parents of E (on the assumption that Mr and Mrs O are not her parents). The Local Authority has contacted the Nigerian organisation NAPTIP (National Association for the Prohibition of Traffic in Persons and other Related Matters). According to NAPTIP's letter the Clinic is not registered in Nigeria, and Dr Odimba's medical qualifications are not known, and the Nigerian Medical Association is investigating the activities of the Clinic and Dr Odimba. That information seems to me to be prima facie reliable: I can see no obvious reason for it to have been invented. I can place no reliance on Mrs S's account that the Clinic has been registered since 1991 and that neither it nor Dr Odimba, its director, is under investigation. I am satisfied that the Local Authority has done all that it can so far to make investigations about E, her origins and the circumstances of her birth.
26. Mrs O says that she is now pregnant, with a delivery date in February 2012. She has now produced a scan report bearing her name which shows a pregnancy commencing probably in early June. I note that from the medical notes dated in late May 2011 Mrs O claimed to be 16 weeks pregnant but all tests were negative. Mr Naylor told me that providing that the person whose urine sample was produced was Mrs O, and providing that it was Mrs O who presented herself for the scan, then this is incontrovertible evidence that she is pregnant. I have heard no evidence as to how such reports could be untrue or concocted: I accept that this was not suggested by any of the parties: in the light of the history I wanted to establish Mr Naylor's views. ^[1]
27. I am prepared to accept for the purposes of this hearing that Mrs O is pregnant and is likely to go to term in February 2012. I hope very much for their sake that she will be delivered of a child: but this may in itself have implications for E of a number of kinds.

The hearing

28. I heard from Lambeth Social Workers Samuel Adjekumu-Adjepong and Mrs Patricia St Claire-Smith, from Mr Naylor, from Mr and Mrs O, and, via telephone link, from Mrs S, who says that she is a midwife at the Clinic.

The social work evidence

29. I was impressed by the evidence of the two social workers who struck me as professional, fair minded and balanced. I am satisfied that they have genuinely considered the crucial elements of this case, in particular the overwhelming medical and scientific evidence, and genuinely considered the difficulties that the assertion of parentage of baby E, and the Os' beliefs, create, and which are likely to have profound implications for her once she reaches an age when she can understand her past.

The expert evidence

30. Dr Chike Okocha is a consultant adult psychiatrist. I assume that he is of Nigerian, although perhaps not of Ibo origin. He saw Mrs O on 20 and 27 August 2011. He did not see Mr O. He was not called to give evidence. His report is dated 29 August 2011. He was asked:

i) to give an opinion whether Mrs O suffers from a mental health disorder;

ii) to comment on apparent symptoms of pseudocyesis (false pregnancy syndrome);

iii) to recommend treatment, if appropriate; and

iv) to consider Mrs O's insight, the effect of her mental health on her ability to understand Lambeth's concerns, to comment on the effect of her mental health on her ability to provide long term care for E, and to comment on any therapeutic services that might assist her.

31. Dr Okocha did not find Mrs O to have any symptoms of psychiatric illness. She became emotionally aroused, irritable and angry and her speech accelerated when her account was challenged (as was also the case in the witness box): he did not think that this demonstrated any disturbance of mind: such a reaction was quite common in Mrs O's culture. He could not comment on whether she might have a personality disorder: although he was struck by the fact that she had not informed her husband of her HIV status: which in his view gave 'an indication of the extent to which she would go to achieve goals'. Also, he thought that if the criminal courts found against her in her claims to be E's mother this 'will suggest psychopathic traits of callousness and disregard for, and violation of, the rights of others'.
32. He questioned the diagnosis of pseudocyesis because of her insistence that she was pregnant and gave birth to E. But 'if her claims are untrue then pseudocyesis is a probable diagnosis although there is also the possibility of simulated pregnancy for other purposes'.
33. Mr Christopher Naylor is a consultant obstetrician and gynaecologist of immense experience. He gave his evidence with professionalism, with thought, restraint and sensitivity.
34. He saw Mrs O on 18 October 2011. Holman J's order provides that the expert was to (i) review the medical records (ii) consider all relevant documents in the proceedings (iii) interview Mrs O and perform such medical examination (if any) upon her which he considers necessary and appropriate, having regard to her current pregnancy: he was to report on the degree of likelihood that she did actually give birth to E vaginally on 9 November 2010. Mr Naylor wished (i) to examine Mrs O's perineum, to see whether there was any scar which related to episiotomy or tear: this would have involved, perhaps, parting her thighs manually, but not touching her genital area: if there had been any such scar this would be conclusive evidence of previous vaginal delivery. If there were no scar he would have (ii) inserted one finger to the knuckle to test the laxity or otherwise of the vaginal opening; and (iii) examined her cervix, which, if she had given birth within the last year, would be likely to have a specific appearance: this would have involved the insertion of a speculum. In addition if she had been subjected to female "circumcision" (as some Nigerian women are) she could not have given birth vaginally without the performance of a procedure the results of which would have been obvious. Furthermore he wanted to examine her for evidence of her current pregnancy. I accept that he explained to her carefully what he intended to do.
35. Mrs O would not agree to be examined at all, until she spoke to her solicitor, who explained what was necessary. Even then she would only allow Mr Naylor to examine her abdomen and to palpate it. In fact her anterior abdominal muscles were too tense for him to detect a pregnancy, and she either could not or would not relax them. He could not confirm that she was pregnant. He could not draw any conclusion from that examination whether she had given birth in the past year. If he had been able to carry out the examination requested it is quite likely that he would have been able to form a conclusion.
36. Mr Naylor told me that Mrs O had not given an explanation why she would not let him examine her. It was put to him that she had explained that she was frightened to be examined because she was afraid that she would miscarry her current pregnancy. He was sure that she had not given this explanation. He recalled that he told her that in the first instance that he only wanted to look at her perineum and that the result might be conclusive. I am satisfied that if he had had to examine her internally and she had said that she was frightened about a miscarriage he would have told her that he had performed many such procedures over the years and there was no risk of causing a miscarriage. He expressed surprise that Mrs O had not had a cervical smear during her pregnancy. She later asserted that she had not been vaginally examined during this current pregnancy: something which Mr Naylor thought would have been routinely done.
37. I accept Mr Naylor's evidence that Mrs O did not tell him that she did not want to be examined because of the risk of miscarriage: if she had done he would have reassured her. Mrs O is a forthright person and I do not think that she would in any way have been hesitant in expressing her views, and Mr Naylor is a gentle person. Mrs O has had a number of cervical smears and must have undergone procedures with a vaginal speculum.
38. Mr Naylor has experience of the condition known as pseudocyesis. His experience is confined to women from West Africa, and in the past, before routine pregnancy ultrasound scanning, and before urine tests were as accurate as they are now. Some research indicates around 1 in 350 pregnancies in West Africa is in fact pseudocyesis. Women who suffer from this condition believe that they are pregnant, and have symptoms mimicking pregnancy: their abdomens may protrude and they describe experiencing sickness, food cravings, breast tenderness and enlargement, and other symptoms associated with pregnancy, and say that they experience foetal movements: they may have elevated levels of certain hormones. Some aspects of this case may point to pseudocyesis. He has no experience of a case where a woman who believes falsely that she is pregnant presents with a baby to whom she asserts that she has given birth. He has no experience of simulated pregnancy.
39. Mr Naylor told me that normal human pregnancy lasts between 37 and 42 weeks. It is physiologically impossible for the pregnancy to endure beyond 42 weeks; the foetus dies because the placenta gives out. Mr O's account that his mother's pregnancy with him lasted 11 months cannot be true. Mrs O's account of pregnancies in her family lasting for years, and the suggestion that her pregnancy with E lasted over a year, indicates that there is family history of pseudocyesis.

The evidence from Nigeria

40. Mrs O filed and served a statement from Mrs S, in accordance with Holman J's order. Mrs S asserts that she was present when Mrs O was delivered of E.
41. Miss Mather for the Local Authority asked me to dispense with her attendance since her evidence could not be true. I thought that she should give evidence. But there was a problem over payment for the video link which Holman J had thought the Legal Services Commission should fund. The LSC refused to do so through Mrs O's certificate. The local authority declined to fund any part. I thought at that stage that I was being asked to rule on the cost of the English Queen's Building video, which I did think should be borne equally. Mrs O's counsel then produced on Tuesday (day 2) an estimate for almost £7,000 including the involvement of lawyers in Lagos and Port Harcourt. It was far from obvious precisely what any of these costs in fact entailed. I was also told that the estimate was for 4 witnesses including Mrs O's brother and cousin but they were not to be called 'due to expense'. Mrs Ojituku could not tell me what would be required to fund the Nigerian side of the exercise for Mrs S alone. In the absence of being provided with an accurate and detailed estimate I felt that it would be wrong to ask the LSC to fund an exercise where there might be no effective enquiry ex post facto into what was or was not objectively required, but where a claim might be advanced on behalf of foreign professionals who genuinely believed that their expenses would be met. In any event the likely costs were more than I felt able to sanction, and I ruled that Mrs S could give evidence over the phone.
42. The hearing on Wednesday was delayed because that morning, and without informing me, Mrs O's legal team had been trying through the associate to contact other witnesses by telephone in Nigeria: Dr Odimba, and Mrs O's cousin and brother: my note says "proposing to call other witnesses". No statements had been filed from these witnesses, although a letter from Dr Odimba had been circulated. I expressed my concern at the waste of court time particularly since court staff were waiting to contact Mrs S by telephone, and all the other parties had objected to the delay. I ruled that Mrs S's evidence should be heard (it was now after 11.30am) and that I would consider whether any further evidence should be called when her evidence was concluded.
43. Mrs S was contacted. The call was interrupted but reconnection was easily facilitated. With the help of Mr Alomo's instructing solicitors' representative, sitting at the associate's desk, who repeated parts of the evidence and questions when they could not easily be heard, the evidence was satisfactorily adduced if not in ideal circumstances, that morning. After the luncheon adjournment Mrs Ojituku told me that she would not be making an application to call further evidence. I assured her that my expressed concern at the wasted court time that morning would not affect my decision, which would be made on the merits, and that I might well permit her to call one or other of these witnesses. She assured me that she did not wish to make the application.
44. Mrs Ojutiku asked me to "note" that Mrs O's cousin C had been contacted by telephone that morning by the associate but had given the impression that she was in a hurry and had to go back, with the implication that she could not give evidence. This was the same cousin who was in the background during Mrs S's evidence, and who was said to have been present at the hospital when E was born (see below). I decline to draw any conclusions as to C's movements or availability.

The Os' evidence

45. The accounts of Mr and Mrs O differed significantly in some respects from the accounts that they had previously given.
46. Mr O gave evidence first. He said that he utterly believed his wife. She told him that E was his daughter and he believed her.
47. I had been told that at a previous hearing Mr O recognised that he is not E's father. In his counsel's position statement for this hearing it was written on his behalf that he had "considered the results of the DNA test very carefully and recognises that the Court is bound to conclude that he is not 'E's' father. He does not seek to dispute the results of the test. Nevertheless, Mr O considers himself to be E's father in every other sense. …Mr O does not accept that his wife knowingly (original emphasis) falsely represented that she gave birth to [E] with a view to securing her entry into the UK."
48. I read this, as I was intended to, as Mr Alomo accepts, as being a recognition of reality, but supportive of Mrs O's case as to innocent belief. Mrs St Claire-Smith the current social worker expressed her concern in evidence as to what this would mean for E: what would she think if it were recognised, at least by Mr O, that he was not her father; who could be her father? What would this mean about Mrs O as her mother? What would she believe about the state of her parents' marriage? What would be the effect on her of different beliefs in Mr and Mrs O? Whether as a result of hearing this evidence or not, in Mr O's oral evidence it eventually became clear, although originally his views were very vaguely and tangentially expressed, that he believes that the DNA tests are wrong, or alternatively, that E is his child in some spiritual or metaphysical or perhaps supernatural sense in which DNA is irrelevant.
49. Mr Alomo frankly accepted in submissions that his client's case had changed in the witness box. Mr O did not accept this, nor did he accept that the statement in the position statement could in fact be misleading (on his part, I should stress, not Mr Alomo's). I am not sure whether Mr O is prepared to say things forensically which he does not believe, or whether he may have fluctuating beliefs.
50. Mrs O gave her evidence with apparent rationality and straightforwardness in contrast to the vagueness and allusiveness of Mr O's evidence in respect of the pregnancy and his beliefs about it. Mrs O said plainly that this was her child, she knew, because she had had the experience of pregnancy and had given birth to her, although she could not explain the DNA results and also at the end of her evidence suggested that DNA was irrelevant. But there were quite marked discrepancies between what Mrs O said to me and other records of what she has said. I bear in mind that I must approach such discrepancies with caution, but in many cases what is now denied in fact chimes with other aspects of the evidence or with previous statements.

Mrs S's evidence

51. Mrs S made a statement in which she claims to recollect the birth. She says that the birth was 'induced' with herbs. Labour started 1 hour later and the baby was born 3¾ hours later. She produced 'antenatal notes' which she said had been made by a doctor and not by her. There was no actual reference to any examination from which pregnancy was diagnosed. She produced no contemporaneous delivery notes. She produced a 'delivery note' certified with a stamp, unsigned, vague in the extreme, dated August 2011. In that and in her own account there was no reference to first, second third stages of labour, frequency of contractions, detail of foetal monitoring and so on.
52. Mrs S accepted that there had been two ultrasound scans in Nigeria which had shown no pregnancy. She said that this had been a 'miracle birth' she had been the point of contact with God. She maintained that E had been delivered naturally and by her.
53. At the beginning of Mrs S's evidence it was apparent that there was someone else in the room with her. She said that she was at the Clinic. She was asked to move to be in a room on her own. She said that she had done so. Later during the evidence it became apparent that Mrs O's relative (the one said to have been present at the birth) was in the room: and appeared to be speaking in the background before questions were answered. When asked why she was there Mrs S said that the relative had come to see the doctor for treatment. She had earlier stated that Dr Odimba was not at the hospital that day.

Important features of the evidence

54. Mrs O's medical records show that she believed that she was pregnant from early to mid 2009: and in January/February 2010 she asserted that she could feel the baby kicking: E must have been conceived in January or February 2010.
55. She first requested a pregnancy test in January 2009: in September 2009 she was booked for a scan: her abdomen was increasing in size: she suggested that she was 16 weeks pregnant: the scan was negative on 19 October 2010 on 4 February 2010 she said that the baby was moving: but there was a negative pregnancy test. In April 2010 a scan was negative. In June 2010 she went to see her GP Dr Wright: there was no evidence of pregnancy. In August 2010 when she went for her immunisation prior to her trip to Nigeria she did not say that she was pregnant.
56. According to the records Mrs O has told more than one person that she was pregnant with E for over a year: Mrs O says that medical records that show that she believed that she was pregnant from mid 2009 onwards are wrong: but Mr O believes that she was pregnant for well over a year before November 2010.
57. The account given from the witness box by Mr and Mrs O as to the reasons for going to Nigeria and why she had stayed after her visit to the clinic was vague, diffuse and difficult to follow.
58. Mr O says that he understood that she was pregnant before she went to Nigeria although he accepted that there was no evidence of pregnancy according to the British investigations: that was one of the reasons why she went to Nigeria, because 'that kind of pregnancy occurs over there', that is a pregnancy where the scans show an empty uterus but a baby is eventually born. He said in evidence that Mrs O told him that she had had ultrasound scans in Nigeria but no pregnancy was detected there either: Mrs O said in her statement that she had had two ultrasound scans in Nigeria, the second on 2 November 2010. In evidence she said that this was a hand held sonic aid to detect the baby's heartbeat. Mrs S said that these were ultrasound scans, both negative, and this is also what Mr O was told.
59. Mrs O says that she attended at the hospital and that either a doctor or a midwife (she has not been consistent with regard to this) detected a pregnancy. She was treated with traditional herbs: she said in evidence that this was to prevent miscarriage because she was 'spotting' blood. The 'antenatal notes' produced by Mrs S which on one page bear a 2011 date make reference to bleeding and threatened miscarriage and treatment with herbs but are very vague. The only notes produced by Mrs S allegedly from the Clinic are ascribed to August/September 2010, although they also bear the date 2011. There is a reference to an estimated conception date and delivery date, to the risk of threatened miscarriage due to bleeding, but no positive account of an examination leading to a diagnosis of pregnancy. There has been a difference of account from Mrs O as to whether the pregnancy was detected by a midwife or by a doctor in Nigeria. The notes, as I have said, are vague, and Mrs S said that she had not examined Mrs O for pregnancy and the notes were made by the doctor. Mrs S said that the birth notes which she made were sent to lawyers. No further evidence has been produced as to how and when that might have been. Mrs S did not give any more than outline detail as to the birth.
60. Mr O thought that the herbs were to help with the pregnancy but was vague as to how. He appeared to be saying that there had been no pregnancy but that the herbs had created it: he later clarified this to say that in 'this kind of pregnancy' the baby was too small to be seen on the scan but the herbs made the baby grow.
61. Mrs S said that she did not know why Mrs O had been given herbs during pregnancy by the doctor: she had been given different herbs in delivery to make the baby turn.
62. Mr O asserts that he was told by Mrs O that the baby would be born on 9 November; he does not say how they knew.
63. Mrs O is said to have told a social worker in England that the reason why the baby did not show up on the scan is that the baby was lying near her back and it was witchcraft: she denies that this has been accurately recorded. There is other reference to her having visited a 'witch doctor'. I accept that this may be a paraphrase by the person recording the account and not be what Mrs O said. According to Mr O she was treated with traditional medicine: Mr and Mrs O have referred to her having undergone traditional rites which were said to be relevant to addressing the problems resulting from her having a pregnancy not detected on a scan. Also, Mr O's father is a traditional herbal healer. Mr O implies in his statement that there was something that the Clinic could do that UK hospitals could not. His evidence was extremely vague and he had to be pressed as to what he meant. He denied that he thought that there had been no pregnancy until Mrs O was treated in Nigeria: although some of his previous evidence might have supported such a thought process. He than said that the herbal treatment offered was to help a baby that was too small to be detected to grow: that is of course a physical impossibility: Mr Naylor told me that scans will always detect a uterine pregnancy six weeks after the last menstruation: if the pregnancy is extra uterine it is incapable of natural delivery (and is medically very dangerous), and if ectopic will kill the mother unless surgically removed.
64. Mr. O told me that Mrs O had stayed in Nigeria because the pregnancy could not be detected in the UK, but had been diagnosed at the clinic, or so he had been told, and despite the absence of ultrasound findings, in Nigeria. He said that had the pregnancy been detected on the scan Mrs O would than have returned to the UK to give birth.
65. Mrs O said in her written statement that her relative was outside the room when E was born and only came in after E was born. In oral evidence she said that she was inside the room, just by the door. She was asked to demonstrate where by reference to the court room. In her evidence Mrs S gave precisely the same account, using almost exactly the same words.
66. Mrs O was recorded by the Caldecott clinic as stating that the labour had lasted 15 minutes (24 December) and was very rapid (29 December). She denies saying either of these things. According to her statement and Mrs S's evidence the labour lasted 3¾ hours.
67. I have seen a number of photographs of Mrs O's unclothed abdomen. Mr O says that she was advised that she take these whilst she was in Nigeria. Mr Naylor advises that increase in the size and change in the appearance of the abdomen could be consistent with pseudocyesis or with simple weight gain. I have seen a number of photographs of Mrs O taken three or so years ago: she was slimmer overall in those photographs than she is now, and not just in the abdominal region. Mr O asked Mrs O to send him photos of her increasing abdomen from Nigeria as proof that she was indeed pregnant.
68. I do not have any photographs of Mrs O in the labour suite or giving birth: I would not expect her necessarily to have these: such photographs are a fairly new phenomenon in this country and may not be expected in Africa, but this is of some significance because there is a clinic note of the Caldecott (although Mrs O denies saying this) stating that she had photographs of the birth.
69. I have digital photographs of Mrs O at the Clinic holding a young baby dated 9 November 2010 at 23.15 pm: and also the photographs of her outside the Clinic with the baby the following morning.
70. Mrs O is recorded as telling the High Commission that she had gone to Nigeria not knowing that she was pregnant but had to stay there because of complications: Dr Wright in his letter dated December 2010 obtained by Mr O records the same. Mrs O denies saying this: she asserts that she said, as Dr Wright put it in a later letter, that the pregnancy had not been detected on the scan. In her written and oral evidence, and to Dr Okocha, Mrs O said that she had symptoms of pregnancy before she went to Nigeria. Mr O said in the hearing that he had known that she was pregnant (and had been pregnant since some time in 2009).

Conclusions on the evidence

71. On behalf of Mr O I am asked to accept that E is his child and he asks me to accept Mrs S's evidence as the absolute truth. On behalf of Mrs O I am asked to accept that E is Mrs O's child: I am also asked (although perhaps not on instructions) to find that if I cannot accept the evidence as to parenthood, that Mrs O genuinely and honestly believes that E is her child, and I am asked to accept those parts of Mrs S's evidence which marry with Mrs O's 'reality'. The problem is that I cannot be sure what Mrs O's 'reality' is.
72. The strongest piece of evidence supporting the case that Mrs O does not know that E is not her child is that relating to the presentation of E for an HIV test in December 2010. This formed the subject of a further attempt, after the case had concluded, and I had received written submissions from Mrs Ojutiku overnight (which I had agreed that she could send me), to supplement her oral submissions, to obtain a clear record from the Caldecott. Records were received, some of which Mrs O disputes. All agreed that at that stage in the hearing that any evidence given by Mrs O, and any challenge, would be difficult to evaluate. The position from the Caldecott is still not clear. I stress that Mrs O was not challenged on her account, which was that:

i) she tried to get medicine for E at the only facility in Nigeria but the hospital was on strike.

ii) she booked an appointment at the Caldecott on 22 December 2010 which she could not take up because her flight was delayed through bad weather (there has been some indication that there is no record of a missed appointment: I disregard this).

iii) she brought E to the Clinic without an appointment on 24 December 2010 because she wanted to get drops for her which she knew she needed within three months of birth: she and E had blood samples taken.

iv) she was told on 29 December 2010 that the blood tests were back and that all was well with E.

73. I am not satisfied that this sequence of events even without challenge shows me that Mrs O had a complete belief that E was her child. I stress again that she was not asked about these events, but I have to consider the material that I have, and the evidence as a whole.
74. I note that :

i) There is some evidence that the blood test took four weeks and the notes are unclear as to when the results were back.

ii) The hospital's account is that results were not discussed until March 2011 and the alarm was immediately raised that E could not be Mrs O's child.

75. I am prepared to accept that Mrs O asked for a blood test for E on 24 December 2010, rather than the Caldecott suggesting this. I do not accept that Mrs O only attended the clinic for E's sake: Mrs O needed to replenish her own supply of antiretroviral medication of which she had run out five days before.
76. There may have been a number of reasons why she thought that E might be HIV positive, not least that if she had been born in West Africa it might be prudent to have her tested in any event: although I accept that this was not put to her. I am also struck by the fact that if the results had been back on the 29 December 2010 (and there is no record of this) the hospital would have realised earlier that the lack of antibodies was highly anomalous. Furthermore Mrs O showed some ignorance of HIV mechanics: viz. her statement that her husband is not at any risk from her: and confusion between antibodies and viral load. I do not accept that she knew that the absence of antibodies as opposed to virus would be impossible if E were not her child. It is also possible (although again not put to her) that she thought that she needed to present E for a blood test in order to demonstrate that she did think that she was her child: just as she and Mr O thought it necessary to take a photographic record of many important events. Mrs O struck me as a very acute person.
77. But I also take into account other factors. The evidence that E is not Mr and Mrs O's child is overwhelming; no person could rationally believe that she was their child: indeed Mr and Mrs O's case involves an assumption that in certain circumstances normal scientific laws are suspended or are to be disregarded. Quite apart from the repeat DNA tests, the negative scans and pregnancy tests, and the absence of HIV antibodies, all the evidence points to an overwhelming conclusion.
78. The refusal by Mrs O to be examined supports the inference that she knows that her body does not bear the marks of childbirth: I do not accept her explanation for refusing the examination by Mr Naylor: she may also have feared, for whatever reason, that he would not find that she is currently pregnant.
79. I have found on the clearest possible evidence that she did not give birth to E at the Clinic or elsewhere. I cannot positively find, even on the balance of probabilities, that she was actually treated at the Clinic at all, or that she underwent any form of simulated or pretend labour. In fact, I am inclined to think that she did not. I found Mrs S's evidence incredible throughout: she was plainly being 'helped' to give her evidence by someone, perhaps Mrs O's relative, although, I thought at one stage that I heard a man's voice as well as a woman's. Her account that Mrs O had undergone labour is a frank lie. Mrs S must know that she is not telling the truth, and Mr and Mrs O must realise this.
80. I cannot imagine a circumstance in which a trained midwife could imagine that she had delivered a baby from a woman when this had not happened. A suggestion in some of the early documents that Mrs O may have been duped because the labour suite was in darkness was not pursued: both Mrs O and Mrs S say that the lights were off briefly because of a power cut but that the generators were put on very shortly afterwards and the room was properly lit. Some parts of Mrs O's account are consistent with a false labour process: a drink of herbs to 'induce labour' leading to internal pain, a midwife putting a hand inside her and a gush of fluid which she interpreted as her waters breaking, could have been created to deceive her: but the account is just as consistent with a complete fabrication. The Clinic plainly had dealings with Mrs O because they have supported her account. No motive has been given for Mrs S to lie and deceive Mrs O: this is not a case such as the Haringey case (Haringey London Borough Council v C, E and another intervening [2005] 2 FLR 47) where Ryder J. was able to find that the ministry running the clinic had a vested interest in 'miracle' births. I cannot find that there were significant financial arrangements (other than the £250 which Mrs O said that she had paid): but I cannot find that there are not, and there must have been some incentive. The presence of Mrs O's relative at the clinic with Mrs S when the doctor was not there points to some family connection and influence, and Mrs S gave evidence under her supervision. All these factors tend to support the case that Mrs O is not an innocent dupe. Further than that I cannot go.
81. Mrs O spoke lucidly and clearly if with a good deal of emotion and anger and with no sense that she was deluded. Much of her presentation is consistent with pseudocyesis: for instance her swollen abdomen, which is documented and of which there are a number of pictures, and which would probably be impossible to fake: but it is also consistent with simple weight gain. The picture from the medical records that she had presented herself as being pregnant consistently from July 2009 until November 2010 is also consistent with a pseudocyesis: but it may also be consistent with a consciously simulated pregnancy. Also, having heard Mr Naylor's evidence Mrs O backtracked on crucial features of the case previously accepted or presented: for instance denying that in February 2010 (at just about the time of E's conception) she had told the doctor that she had felt the baby kicking: saying that he had suggested that to her, and her change of case about the ultrasounds in Nigeria. This suggests to me that she was able to take a tactical and rational approach to the question of matters relating to pregnancy which may be inconsistent with a fixed false belief. Also, as I have said above, Mr Naylor told me that in his experience of women with pseudocyesis he had never encountered a woman who had then claimed to give birth and produced a baby: although a common presentation was that a woman would be admitted to hospital claiming to be pregnant, and then once confronted with evidence that she was not pregnant, accuse the nurses of stealing her non-existent baby. On the other hand in the Haringey case Ryder J. did accept that the wife had been deceived into believing that she had given birth to three children, in rather similar circumstances to these and where Ryder J said that of that couple's belief… "faith is the answer to what medical science cannot or will not explain".
82. I got the impression that Mr O showed more signs than Mrs O of an unquestioning belief in the supernatural: he referred on several occasions to believing in the 'natural' by which he plainly meant beyond the scientific. Mrs O attempted to give a rational scientific answer, stating that the herbs were used to prevent her from 'spotting' blood, and to prevent miscarriage, rather than to assist in a miraculous pregnancy, as Mr O said he believed.
83. I am not able to hazard a guess as to how a fixed mutual and irrational belief as to the birth of a child can develop in both a husband and wife.
84. Against all the other evidence I am unable to find that Mrs O has been duped, misled, or is living in a fantasy world. I cannot accept that she truly believes, particularly in the light of all she knows now, that E is her child. I do not accept that she truly believed that when she brought E into this country.
85. I am not asked to find that Mr O is a party to a conspiracy. I do not know what he truly believes: or indeed whether his beliefs are constant. I find it very difficult to accept that he truly believes now, having heard all the evidence, that E is his child.
86. I am quite satisfied that Mrs O has not told me the truth, and consciously so. In the case of Mr O, I am not satisfied that he has told me the whole truth as he perceives it.

The Immigration Position

87. I note the concern expressed by the ECO that there was no evidence that Mrs O had been pregnant when she travelled to Nigeria, and why she had given birth in a private clinic in Nigeria when she could have had NHS treatment in the United Kingdom. Mrs O presented Dr Wright's letter obtained by Mr O supporting her account that she did not know that she was pregnant at the time of her travel but that the pregnancy had been diagnosed in Nigeria and complications had developed which led to her having to delay her return beyond September 2010. Mrs O denies that she gave this account to the ECO, but the ECO plainly needed to be satisfied as to why Mrs E had unexpectedly approached the High Commission immigration clearance for an unexpected child, and Mrs O's account that she neither knew nor suspected that she was pregnant provides such an explanation. That account is inconsistent with the account given by her and Mr O in these proceedings that she believed that she was pregnant when she went to Nigeria.
88. I am very surprised that on the information given the ECO concluded that "the child is biologically the mother's". However it may be that Dr Wright's report was influential. Dr Wright seems to have adopted a very unquestioning approach since he also expressed great surprise in Mrs O's medical notes that she had had a baby. He seems to have been told by Mr O that this was a normal if unexpected pregnancy and was not told about the negative scans and the intervention by the Clinic, and Mr O's beliefs about this.
89. I note that Mrs O is recorded as having come across very well in interview and as very believable. Indeed, her evidence to me was given with passion and conviction and at moments I had to remind myself that the evidence showed that her account could not be correct. But it is very unfortunate that the ECO was persuaded out of his original caution, and unfortunate that Dr Wright was persuaded to support the Os on the basis of an account by Mr O which he himself found very surprising.

Assessment

90. Mr and Mr O are keen to be assessed if court does not find that they are E's parents: but they do not accept that they are not parents of E.
91. I accept the evidence of Mrs St Claire-Smith, the current social worker, that:

i) E needs a clear narrative as to her parentage and origins;

ii) not to have that clear narrative and to be brought up in confusion as to her identity will cause her harm;

iii) matters would be different if Mr and Mrs O were able to put forward a clear account of her origins such as that E's parents were not able to care for her;

iv) if Mr O accepts (at whatever level) that he is not E's father biologically, but he and Mrs O continue to assert that Mrs O is her mother, this will cause great confusion and possibly distress in E ; and

v) Mr and Mrs O say that they have compiled a book with various documents including the DNA tests for her to read when she is older; she will be able to make sense of it: Mrs St Claire-Smith said that this could be very confusing indeed.

92. In addition I take the view that the birth of a new baby in the household will cause a number of problems for E, in terms of understanding her relationship with the family and where she fits in. It is simply not like an adoption. Also, the Os may treat her differently to their own child.
93. Mrs Ojutiku submits that if it is correct that Mrs O is manifesting a pseudocyesis, then the birth of her own child will cause this belief to disappear, and she will accept that E is not her child. If she is right, then this could cause very significant problems for Mrs O in adjusting to reality and will place Mr O in an impossible position.
94. The case that Mr and Mrs O advance in respect of their claim to care for E is that :

i) they believe, or they say that they believe, that she is their child;

ii) they love her; and

iii) they cared for her for four months, and there must have been an attachment at that stage.

95. Standing back from these assertions, in fact it is difficult to see how they offer any advantage to this child at all. They have no true claim on her. Their case is based on deception, even if not of this court and the authorities, but of themselves. Their care of E will be based on a potential deception of her. Even on their own case, their love for her is based on a falsehood. This is a falsehood which must have involved the removal of a child from her natural parents in circumstances likely to include coercion or deception, and perhaps violence. As Mrs St Claire-Smith said, if the truth is otherwise, or indeed if this were some kind of surrogacy arrangement or this is a rescue case, why not admit it.
96. In Haringey Ryder J. formed the view, on advice, that the children concerned would be likely to suffer very significantly if brought up to believe a lie about their origins. I share that view. In any event the evidence has raised more questions than it has answered about the motivations, personalities and functioning of each of Mr and Mrs O, and their true beliefs and motivations.
97. I do not know whether Mr and Mrs O truly believe that E is a 'miracle baby', born through heavenly intervention in circumstances where this could not have been the process of normal physiology, and that Mrs S was the point of contact with God. Mr and Mrs O have not specifically said this. I was very confused from their evidence as to precisely what they do believe. A child in my view would suffer extreme confusion in any discussion with them as to the background.
98. I accept that contact has gone very well, apart from Mrs O's emotionalism, and at one point histrionic behaviour (leading to an ambulance being called) which may in itself have been created for effect.
99. I do not accept Mrs Ojutiku's statement that E is an Ibo child. I do not know where E originates. Still less do I accept Mrs Ojutiku's submission that "there are certain inherent characteristics and factors that are typified by birth and cultural origin".

HIV

100. It is important for me not to discriminate against Mrs O because of her medical condition, but some reference to this feature is necessary. Mrs O is presently being treated at the Caldecott Clinic in London for HIV. I do not have a report from that clinic. She says that she has complied with her treatment regime and that her viral load is presently undetectable. In her recent notes she is referred to as having a viral load of less than 40: which seems to support her account. In the light of the history I have to be very cautious about accepting any account given to me by Mr and Mrs O, particularly with regard to health matters, but there is nothing to suggest that she is not telling the truth about this, and I got the impression that she is committed to her own treatment. Apart from a short period of time before she returned from Nigeria with E, when she ran out of drugs, she appears to the Caldecott to be compliant with her medication. I am prepared to accept that she had E tested at her instigation, for whatever reason.
101. Mrs O did not disclose to Mr O that she was HIV positive. He only learnt after E was born. In the witness box he said that this was fine; it was no problem for him: he says that he has been tested and is negative. I have no evidence either way about this. He was not troubled about the fact that Mrs O had not disclosed her HIV status to him. He said. "Everyone lies." I accept Mrs Ojutiku's submission that an omission may not be a lie. Dr Okocha's suggestions as to inferences to be drawn from this conduct have not been tested and at the moment I place no weight on them, but they may be relevant to Mrs O as a person and a parent and with regard to her relationships with others.
102. Mrs O denied that Mr O is at any risk and that she had any responsibility to tell him about a matter which she regarded as private to her. She said that she gathered from the Caldecott Clinic that 60% of the woman who attended there did not have partners who were HIV positive. She did not regard her or Mr O as taking a risk. I regard their attitude to the risks as alarmingly cavalier. If Mr O becomes infected and in particular if he does not get tested or obtain treatment this will have very significant ramifications for himself, his children, and perhaps for the public, depending on whether he is working in an 'exposure prone' occupation, as his employment may be. In Germany he was required to be tested because of his employment.
103. Mrs O tells me that she did not tell the Nigerian clinic that she was HIV positive. If she had indeed been delivered of a baby there that would have been irresponsible so far as she, the staff and the unborn baby were concerned. If she was not in fact pregnant it may have been less important. Of course, there is a possibility that she did not attend the clinic for treatment at all. According to her and the Clinic, she was treated with local or Indian herbs. She did not take any medical advice from the Caldecott about whether any such medication (if it was true that she was taking it) was compatible with the antiretroviral treatment that she was taking.

Criticism of the Local Authority

104. Miss Ojutiku has been extremely critical of the Local Authority, criticism which I do not accept.
105. Mrs Ojutiku criticised Mr Adjepong for stating in cross examination that he was concerned about:

i) why Mrs O had gone to Nigeria to give birth in a clinic without the facilities of a London teaching hospital, in the light of her medical history; and

ii) in the light of the potential immigration problems, why she would give birth abroad.

106. He also said that he had done some internet research: he believes from that that this Clinic may be suspected of being one where young girls give birth and babies are passed on to other families. I accept that some such reference was found on the net: I am not prepared to act on this but it does not take research to ask the question and to entertain such suspicions. If E is not the O's child, then the social worker is entitled to ask the question, where does she come from, and is not the obvious answer some form of organised trafficking? I have also asked myself the same questions, and like him I have no satisfactory answer.
107. Mrs Ojutiku has produced a bundle of correspondence between the Local Authority solicitors and the police which she asserts shows unprofessionalism and bias. That correspondence was produced on the basis of her application before Holman J when Mrs O had already formed the view that the Local Authority was biased against her. I do not accept that the correspondence shows bias, although it does show an obvious scepticism about Mr and Mrs O's account, and their claim to be E's parents, which strikes me as understandable. Thus, it may be said that it shows a lack of respect for their position, but a lack of respect rooted in the belief of the writers that their case was groundless. This does not in my view amount to bias.
108. Mrs Ojutiku says the removal of the surname O from E's birth certificate was in breach of the human rights of the Os and E in particular since the Os were not there to challenge it, but the Local Authority should have. She also says that the Local Authority's reluctance to allow joinder demonstrates that they have ignored the Os rights to private and family life. E's guardian also questions the Local Authority's stance in relation to joinder: he took the view that the Os should be joined.
109. I do not regard these features as disqualifying the authority from taking any further part in the assessment process. In any event the Article 8 rights of Mr and Mrs O must be tempered by the qualifications in Article 8(2).
110. It is also asserted that the Local Authority had insufficient regard to the strong bond that had grown up between the Os and E: that criticism is also unjustified in the light of the facts as they presented themselves.
111. On the basis of my conclusions I will require persuasion as to what assessment is necessary and appropriate, and will be likely to supply the court with any useful information.
112. E is now over one year old and decisions for her future are very urgent.

Postscript

113. Mrs Ojituku asked me to look again at my findings and addressed me on the basis of written submissions: I have made corrections to paragraphs 25, 27, 42, 43, 44, and 61.
114. Mrs Ojituku specifically reminds me that I did not refer to a letter written by a firm of Nigerian solicitors on behalf of Mrs O dated 1 August 2011 and submitted during the trial. It is very vague and allusive, and it does not assist me. I quote "this letter is inspired by the fact that her situation and predicament preceding her delivery may be novel to some persons outside our cultural community and/or society, but these situations however have been known and experienced in the cultural set-up where certain unwholesome things are practiced (sic). The family was therefore part of the initiative for Mrs O to come to Nigeria, given her experience and problems associated with the pregnancy, which can be resolved in the country. That if the situation was allowed to linger, it will have damaging effects on the family reputation if she was allowed to die in the process…… That her predicament and case is not unknown in this clime and solutions have in known cases been found for the women as in her own case." I accept that one of the reasons given has also been a visit to Mr O's family.

This judgment was finally approved on 12 December 2011

Note 1   Further information from the maternity unit at St George’s Hospital produced on 23 November 2011 confirms the pregnancy.     [Back]