(Always nice to sneak a bit of Billy Bragg into the blog. My favourite Billy Bragg line is, of course, from Sexuality “I had an uncle who once played / for Red Star Belgrade”)
This is a discussion of the extraordinary case of A Local Authority v S & O  EWHC 3764 (Fam)
You know that something is peculiar when a High Court Judge begins with Even by the standards of the Family Court this is a strange tale..
And he is not wrong.
Mr and Mrs S were a Nigerian couple, living in England. They wanted to have a baby, and heard of a fertility clinic in Nigeria, Port Harcourt. They paid a lot of money to this clinic, and the mother had treatment there. She returned to the UK and had tests and scans with her GP, which confirmed that she was not pregnant. She rang the Port Harcourt Clinic, who told her that this was not unusual with the process and that she should come over. She visited Port Harcourt and was sedated and then presented with a baby.
Mr and Mrs S returned to the UK with the baby. On visiting their GP, the GP considered that the care of the baby was very good, but having determined that Mrs S had not been pregnant, was deeply troubled by the story of the delivery and contacted the Local Authority.
A DNA test was done, showing that the child had no biological connection to either Mr or Mrs S.
Care proceedings were commenced, it being apparent to the Local Authority that this child had been removed from birth parents and brought into the country and was living with people who had no parental responsibility.
The issue that fell to be determined by the Court was whether Mr and Mrs S had been deceived and hoodwinked by the Port Harcourt clinic, or whether (as the LA asserted) it was inconceivable (pardon the accidental pun) that they had fallen for this and that they had either fully known or simply turned a blind eye to the obvious truth that this had never been their baby.
Here are the contentious findings sought
“(vii) Mr. S knew or ought to have known that Mrs. S was not pregnant as asserted.
(viii) Mr. S knew or ought to have known that O was not their biological child.
(ix) On a balance of probabilities, Mrs. S and Mr. S were complicit in the removal of O from her biological mother at or shortly after the time of her birth.
(x) At the relevant date, O’s care arrangements had been based upon a fundamental deception to which Mr. and Mrs. S were knowing parties.”
Now, this is the bit I find significant, and appalling. As the DNA test had shown that this was not their child, Mr and Mrs S had no PR, and received no public funding. So, they were fighting to defend themselves against these highly damaging allegations and also seeking to care for a child who they had formed an emotional connection though not a biological one. Whilst my gut instinct view of the allegations was that the LA were probably right, it seems to me manifestly wrong that Mr and Mrs S had no legal representation to fight this case, and it is one of those bureaucratic idiocies which makes me slightly ashamed to be British.
As luck would have it, a pro bono barrister came forward, Mr Nicholas Paul, and he clearly did an admirable job for his clients.
I think it is worth setting out the history of the matter given by the mother, as it is important in trying to establish whether this was a nod and a wink “Oh, I’ll pay for ‘fertility treatment’ but we both know I’m actually buying a baby” or whether the clinic was actually seeking to deceive naïve and desperate couples.
“I have been married to Simon S since 2002. On 8 January 2011 I gave birth to O at God’s Gift Clinic Maternity in Port Harcourt, Nigeria. The treatment started in December 2009 under Dr. Chineri Emica Precious who gave me a number of injections and tablets and capsules.
4. In April 2010 I started to feel the symptoms of being pregnant such as bloated stomach and gaining of weight. I returned to Nigeria in April upon Dr. Chineri Emica Precious’s request for a medical check-up and she confirmed that I was pregnant.
5. I returned to the United Kingdom and visited my GP, Dr. H, who was not convinced that I was pregnant in May 2010. I asked her to reduce my blood pressure medication as I was now pregnant, but she declined until there was confirmation that I was in fact pregnant. At this stage, my symptoms of pregnancy persisted. I had another appointment with Dr. H in September 2010 where a body examination was done and she referred me to Homerton Hospital for a scan.
6. On 16 October 2010 I attended Homerton Hospital for a scan and it showed no pulse or heartbeat from the baby. This came as a great shock to me, bearing in mind what I was told in Nigeria, that I was pregnant. I kept up my line of communication with Dr. Chineri Emica Precious in Nigeria, who assured me that it was not unusual for the baby not to be seen on the scan. Also, I was reassured by the testimonies of others who had had the treatment before (my sister and a friend).
7. I returned to Nigeria in October 2010 to see Dr. Chineri Emica Precious who informed me, conversely to what I was told in England by my general practitioner and scan results, that I was pregnant and she continued to treat me with injections and one big medication. I assumed that this continued treatment was in order to maintain the pregnancy. I had no reason to doubt her sincerity or expertise in this regard.
8. In November 2010, Pastor B at my church in London, like other people around me, including my husband, asked me if I was pregnant as he saw that my stomach was bloated as if I was pregnant and I had gained a substantial amount of weight.
23 She continued at paragraph 13:
“In December 2010 I went to Nigeria for the yearly crossing over programme at the headquarters of MFM and later went to Port Harcourt.
14. Soon afterwards whilst in Nigeria, I noted that I was bleeding from my back passage. I recalled that when I was carrying E my previous pregnancy, that the baby and I were bleeding. However, in that prior instance, the bleeding was internal and this tragically led to E suffering her disability, as this was not detected on the scan.
15. In January 2011 during what I perceived to be the birth of O, I recall a doctor inducing labour through intravenous drip and I experienced what was labour, a very traumatic delivery and a baby was presented to me covered in blood as would have been normal in a delivery room. I felt all the natural manifestations of labour and delivery and my baby, O, was presented to me in the manner described. Subsequently, when both the Metropolitan Police and the Applicant suggested a DNA test, I fully cooperated and was not in any way concerned as to the outcome as I knew I had given birth to O. I had named her as was customary and obtained a birth certificate for her.”
24 Paragraph 19:
“Since 21 March when we were informed of the DNA results that suggested that we were not the biological parents of O and she was removed from us, my whole life has been shattered and it was as if we had suffered E’s bereavement all over again. In short, I have been depressed and traumatised. We have struggled to maintain any level of sanity as I am now convinced that I have been a victim of a very serious fraud by those who have exploited my vulnerability and infertility for their own financial gain. I had paid a total of 1.3 million naira (just under £6,000) to this medical practitioner at this stage for the fertility treatment. I enclose for the consideration of this court an article in The Vanguard, a Nigerian newspaper, that clearly sets out in detail the type of scam that I have been a victim of.
21. I have cooperated fully with the police and the Applicant in the course of their investigations into this matter. As a family, we coped fully with E’s serious disability and maintained our composure and dignity throughout. The fact that we have been exploited in this way and the consequent investigation, albeit legitimate, has dragged on and has been devastating for us as a family. I categorically deny that we have been involved in any child trafficking, except to say that this is a tragic case in which we have been a victim.”
25 That ends the quote from her statement. They obviously had in fact filed an earlier position statement, I think without any benefit of legal advice, on 11 April. In that they said this. It was a joint statement produced by both Mr. and Mrs. S. I read from it because it is of crucial significance:
“O was not deliberately removed from her parents in Nigeria. She was brought into this country as I was made to believe that I gave birth to her as a result of the fertility treatment that I embarked on from December 2009. During the treatment I went through gradual stages of pregnancy and was made to believe in the delivery procedure, under which intravenous drip and drugs were used to induce labour, that I gave birth to O. My experience of the treatment and the testimony of others who had previously undertook the treatment built a very strong belief in me that O was my biological daughter, until the DNA test results concluded otherwise. The strong belief in the pregnancy and birth experience led to O’s birth registration. All due processes were followed to obtain travel documents for her to be brought to the UK as our legitimate daughter without any doubt.
The above beliefs were also responsible for us being so adamant that O was our biological child before we had the DNA results. We complied throughout with the investigation in good faith with every assurance that the DNA results would vindicate us. However, it was the DNA results that caused us to see ourselves as victims of crime or error.”
26 They carry on in similar vein, concluding in this way at paragraph six:
“Regardless of the DNA results, we genuinely love O as we would love our own child. S, our nephew, has lived with us for over 11 years and we care for him and love him as our own child. We would be heartbroken if the court allowed O to be abandoned into the hands of the social services to navigate her way through the care system.”
If what she says is right, and the clinic sedated her and gave her medical treatment intended to make her believe that she was in labour, and then presented her with a baby, then her ‘crime’ is really to have believed the clinic rather than her GP who was saying that she wasn’t pregnant. You may think that she was gullible, foolish, perhaps even stupid; but that’s a distance from deceit and complicity.
The story seems utterly fanciful, however. A fertility clinic that goes to all the trouble of trying to make women believe that they have given birth as a charade for what is actually a straightforward sale of a baby? However…
35 Could this be a true story or is it an elaborate piece of invention? On the face of it, the court’s first obvious and natural reaction to this very far fetched tale is to be highly sceptical, but for one crucial piece of further evidence. It is in the form of a lengthy cutting from a newspaper, the Port Harcourt Vanguard, for 11 September 2011. This is also available in fact on the internet. Under the headline, “Baby Factories: how pregnancies/deliveries are framed”: “Vanguard’s investigation reveals more baby factories.” There appears a two full page article carried out by an investigative journalist which describes in elaborate detail the process largely described to me by the mother. I shall read two sections from the article. I have already read the banner headlines about baby factories and it contains a number of black and white photographs. These passages are to be found in the article:
“Our findings reveal that the unpublicised native maternity homes use illicit means to procure babies for childless couples on the payment of huge amounts of money ranging from N750,000 to N1 million, depending on the sex of the baby. We gather that twins go for about N1.5 million or more. The delivery date depends on the baby seekers. While some opt for a nine month period, some go for a fast deal of one month or two, also depending on the availability of the baby from the sources. Investigations reveal that for those who go for a nine month period a pregnancy would be framed and a delivery date given. The delivery date can be postponed indiscriminately based on the availability of the baby. Their patrons are desperate women ranging from high society women, clergymen and women who most times hide the arrangements from their husbands. Most of these centres are found in …”
36 It mentions three towns including Port Harcourt. Then under the heading, “How Pregnancy and Deliveries are Framed” it reads:
“Investigations reveal that these clinics administer certain substances on the patients that form a sort of tumour in the womb of the expectant mothers, making them believe they were pregnant. Occasionally, a movement is caused in the belly making it look as if a baby is kicking. The women are warned not to go to any hospital or undergo ultrasound or any sort of scan as they would lose the pregnancy or baby in the process.”
37 It goes on in similar vein and it contains this passage further on:
“Further investigations reveal that when it is time for delivery another substance is administered on the woman which gives a false impression of labour. Part of the growing tumour will come out through the vagina and it is cut to discharge blood and make it look as if there was an actual delivery. A baby is then sneaked in and made to cry. The woman is also made to believe she has been delivered of a baby. In Precious Ogbana’s case, she told the reporter that when she had one of the babies it was recorded to a friend’s cell phone but she deleted the video a few days later. She regretted deleting the stuff, fearing her husband would not like it, especially if the video got to a third party, adding that she went into labour and gave birth to the kids.”
38 There are a number of case studies set out in the course of that lengthy, double page article. Having seen that article, there cannot be any doubt at all that this far fetched story is rooted most solidly in reality and that this kind of practice is common in certain parts of Nigeria. I have described the process as a baby exchange.
39 So there can be no dispute now that the mother was indeed a participant in this elaborate scam but, as I said at the outset, the central question remains and has to be answered: was she a knowing and willing participant?
The Judge then had to grapple with that central question, and reached these conclusions
50 How do I analyse the evidence to arrive at a conclusion in this mysterious case? The following factors have guided my decision:
51 The mother is an intelligent woman who teaches at an adult literary college in London. She is a God fearing practising Christian, as is her husband, to whom lying is complete anathema. This factor has to count for something even in these cynical days in which we live.
52 The mother gave evidence to me at great length over two days and I found her to be impressive and unshakeable in relation to all important matters. In all important respects, her versions both in writing and to the police have remained consistent. In short, incredible though it seemed to me at the outset, by the end I was driven to believe her account.
53 By the same token, I found the husband, a responsible man in regular employment, to be a patently honest witness. I do not think for a moment he would have gone along with knowingly assisting his wife in participating in a deception on the court.
54 Both the mother and her husband have cooperated fully and willingly with the inquiry once they realised the circumstances of the arrival of the child and once they realised they were suspicious and they realised that these suspicions needed to be allayed. They willingly took part in the two DNA tests.
55 When conducting a fact finding inquiry, particularly one as strange as this, often the most important guide is to be found in the presence or absence of so-called “smoking guns”. That is to say, factors which point to or are either consistent with or entirely inconsistent with one or other side’s version of the possible truth. In this case, there are factors which, in my judgment, point inexorably to the conclusion that the mother is most likely to be telling the truth. What are these factors?
56 The fact that during 2010 she went on visiting her GP, firstly to find out if she was pregnant and then to check whether she was and whether there might have been a mistake. I find it to be unthinkable that she would have returned to the GP if she had knowingly become involved in this scam and after she had received negative tests in England. To do so could only sensitise the GP to the possibility of something untoward happening when the child was eventually produced to the doctor later. But that is precisely what did happen because the GP of course had the chance to examine the mother in the months preceding the so-called birth. In my judgment, the last thing this mother would have done is to go back to the clinic to persuade the doctor to arrange a scan when she could only have known it would reveal nothing.
57 By the same token, why was the mother going backwards and forwards to Nigeria and seeing the doctor if she knew the pregnancy was an invention? She would merely have gone out there in December, around the time of her expected delivery, and collected the child.
58 By the same token, it is unthinkable as I find that the mother would have produced the baby to the GP within three days after returning to this country if she had known the circumstances of her removal from her natural mother and Nigeria were highly suspicious or possibly criminal. She produced the child to her GP in all innocence, expecting the GP to be delighted to be proved wrong. Miss Watson, having to overcome this telling point, says that she took a calculated risk. That, if I may say so, is a gross understatement. It would have been sheer lunacy. As Mr. Paul points out, there were other much less risky ways of proceeding which would have hugely reduced the risk of detection which, were she part of the scam, she must at all times have feared.
59 Then there is the short video clip arranged by the mother. If there had been anything untoward going on which the mother realised, the video would have been set up and stage managed in a way which supported her having given birth. In fact, it does nothing of the kind. It merely shows the mother writhing in agony and a child lying in the vicinity, still attached to a placenta. There is in fact no sign or real attempt to link the baby with the mother. There is no sign of blood on the mother or indeed any sign that she had just given birth. It would have been the easiest thing in the world to have linked the baby more directly with the mother to make it look as if she had just delivered. Similarly, if this had been an elaborate deception, the camera would have had pictures of her arriving at the clinic and of the mother holding the baby etc., immediately following the supposed birth. The video evidence is certainly excellent evidence of the scam disclosed by the newspaper article, but in my judgment it points away from the mother’s involvement.
60 I also think it is highly likely that, if the mother knew what had happened but nevertheless wanted to take her new baby to the doctor, she would not have gone armed with the camera and the clip ready to show the doctor the pictures if challenged. In fact, the mother did not do so. She only produced the pictures (potentially her best evidence if she was being deceptive) in response to questioning from the police and not as her first trump card and without being asked, as one would have expected.
61 All the mother’s actions, in my judgment, both in this country and Nigeria, are consistent with her evidence that she had no idea she was involved in this strange scam, designed to put together unwanted children with desperate, childless parents. Her complete desolation when confronted with the reality, as attested to by both the police and the Guardian, further in my judgment supports her credibility.
62 What are the findings that I make based on this assessment of the evidence? Firstly, most of the primary facts are agreed and not challenged. Secondly, the mother was in a highly suggestible state, especially following the death of her disabled daughter at the end of 2009. She is also, as the Guardian points out, immersed in a Christian religious environment where miracles are not regarded as impossible. Thirdly, I am totally satisfied on an examination of all the evidence that this mother had no idea she was taking part in bogus fertility treatment, much less an elaborate and well tried system for selling unwanted babies to desperate parents in exchange for very substantial sums of money. Fourth, both she and her husband were hoodwinked and are innocent victims so far as their involvement in these matters is concerned. They neither knowingly participated in the wrongful removal of the child from her natural mother nor in the wrongful importation of her into this country.
63 The highest it can be put, as I find it, is that the mother unwittingly took part in an unorthodox adoption process surrounded by an elaborate piece of play acting.
64 Fifth, and for the avoidance of doubt, I find nothing concerning so far about the mother’s mental health any more than the general practitioner does or did. It is perfectly plain the mother now fully appreciates what was going on and what she has been involved in.
65 Sixthly, on the face of it, the mother from what I know seems a good and experienced mother who has brought up her nephew impeccably and looked after her very disabled child over a very long period until her death.
The Judge then invited the Local Authority to reconsider their view of the case and specifically whether Mr and Mrs S could be considered as carers. They declined to do so and an Independent Social Work assessment was therefore commissioned.
The mainstream media seem, to me, to have reported this case as being that Mr and Mrs S got the child back, and not that they had won the right to an independent assessment of whether they should.
A fascinating case, and one that I hope will be unique, although as our world gets smaller, the chances of unscrupulous practices playing a part in UK care proceedings must increase.