London Borough of Hillingdon v AO

In a fact-finding hearing, the court must determine the parents’ involvement by applying the balance of probabilities to the evidence in the individual case. Suspicion arising from unusual circumstances, cultural practices or similar previous cases cannot replace that evaluation. Where the evidence shows that infertile prospective parents were deceived into accepting a child as their own, the court may find that they were victims rather than knowing participants in child trafficking or fraud. A child’s removal from an unknown biological mother may nevertheless satisfy the threshold criteria under Children Act 1989, even where the putative parents are not responsible.

The local authority brought care proceedings concerning a child who had been brought from Nigeria by a married couple who believed they had conceived her following herbal and spiritual treatment. DNA testing established that neither adult was the child’s biological parent. The central issue was whether the couple knowingly participated in an elaborate fraud and wrongful removal of the child, or whether they had themselves been deceived by the herbalists and others.

The hearing was confined to fact-finding. The child’s future welfare was to be considered at a later hearing.

1. Finding on the DNA evidence. There was no evidence that the DNA testing was wrong or unreliable. The court therefore found that the child was not the biological child of the putative parents and that she had been passed off fraudulently as their natural child.
2. Assessment of the putative parents. The court applied the civil standard of proof: whether the alleged fact was more likely than not. The case had to be assessed on its own evidence. The existence of similar Family Division cases, media reports and ordinary expectations about the circumstances could not determine the result.
3. Although the parents’ evidence contained inconsistencies and the account of the treatment and delivery was unusual, important features supported their explanation. They had pursued medical treatment unsuccessfully, followed the herbalists’ instructions, attended their general practitioner during the alleged pregnancy and co-operated with DNA testing. The court concluded that they had been duped and were not knowingly or wilfully parties to the wrongful removal or purchase of the child.
4. The local authority therefore failed to establish its case against the parents. The child was nevertheless the victim of wrongdoing and illegality, having been removed from her unknown biological mother. The threshold criteria under section 31 of the Children Act 1989 were crossed, although the identity of the persons responsible was unknown.
5. The matter was adjourned for a separate welfare hearing and consequential directions.