Two different takes from the High Court on pretty similar facts (on one the ‘parents’ are believed, on the other they are found to be liars). It demonstrates that High Court judges don’t talk much amongst themselves, otherwise the two Judges would have been mangling their chops in the canteen and both gone “I’ve got exactly the same case as that!” and of course that Judges are human beings and not automatons.
I have written about the Port Harcourt “fertility clinic” before
in A Local Authority v S and O 2011 where the High Court in 2011 considered a case where a woman went to Port Harcourt for fertility treatment (this being in Nigeria) and came back to England with a child who was not theirs. One of the big issues in the case was whether the couple had known this and been part of a deception to pretend that this unrelated baby was theirs or whether they themselves had been duped.
The High Court was helped in that case by extensive research by the parents legal team which showed that Port Harcourt fertility clinic had some previous form and been investigated for duping mothers into undertaking a fake labour and tricking them into believing that the child was theirs. Given that it was established that they had tricked other women, the incredible story this ‘mother’ was telling became slightly less fanciful.
(I have in my mind that there was another Port Harcourt case, not long after, but I can’t find it at this moment. I really thought that I had blogged about it…)
This is another High Court case, just reported (although decided back in winter 2011) on the same sort of facts – again the woman went to Port Harcourt for fertility treatment, underwent a false labour and came back with a child – the issue again was whether the couple were duped, or involved in the deception themselves
Re E (A Child) 2011
As a result of timing, neither of the two High Court cases refer to each other. This is something of a shame, since the extensive research and investigation in S and O 2011 didn’t get done in Re E , and the Judge in Re E understandably took the view that the couple’s account of what had gone in in Port Harcourt was remarkably far-fetched. (It might have been that she still had doubts about the couple’s complicity had she known that Port Harcourt had been found to have done exactly what was alleged here in another case, but it might have tipped the balance)
This is the only bit where the worries about Port Harcourt’s practice comes into the judgment in Re E
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.
Given that the Court weren’t given evidence about Port Harcourt’s history of deception, the account given by the couple was felt to be incredible, and there was some doubt in the Court’s mind that the couple had even been to the fertility clinic at all
- 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.
- 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.
- 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.
- 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  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.
- 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“.
- 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.
- 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.
- 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.