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On 20 June 2012 the Supreme Court handed down judgment in a series of linked cases concerning extradition and the rights of children. You can read the case preview here.

The cases concerned requests for extradition made under the European Arrest Warrant system. The warrants were issued by the Italian courts in the case of HH and PH, and by the Polish courts in case of FK. HH and PH had been arrested in Italy on suspicion of drug trafficking and left Italy in breach of their bail conditions. They have three children, the youngest of whom is three. FK was accused of offences of dishonesty alleged to have occurred in 2000 and 2001 in Poland. FK left Poland in 2002, and has five children. The question in all three cases was whether extradition would be incompatible with the rights of the appellants’ children to respect for private and family life under Article 8 of the ECHR.

Decisions in the lower courts

A detailed outline of the lower court decisions can be found here. In summary, in the initial Magistrate’s court decision DJ Evans relied upon the judgment of the Supreme Court in Norris v USA [2010] 2 AC 487. Norris concerned the extradition of a 66-year old man with poor health. His wife would be unable to accompany him. The Supreme Court held that “only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves”. DJ Evans stressed the public interest served by extradition in these cases.

The case may well have rested at this point, however the Supreme Court then gave judgment in the case of ZH (Tanzania) [2011] 2 WLR 148. ZH involved the removal of an asylum seeker with two young children who were both British citizens. The Supreme Court held that “the best interest of the child shall be a primary consideration”, in line with the UK’s national and international obligations according to the United Nations Convention on the Rights of the Child.

Following this decision it was submitted in the Divisional Court that ZH (Tanzania) applied equally in extradition proceedings and modified Norris. Laws LJ accepted that the principles outlined in ZH(Tanzania) impacted upon extradition proceedings. However, he concluded that “a primary consideration” is not the same as “the primary consideration”. On this basis he held that the best interests of the child “ . . . cannot generally override the public interest in effective extradition procedures” unless there is an exceptionally compelling feature.  In particular Laws LJ differentiated between immigration and extradition procedures, stating that the “striking of a reasonable balance” was an inherent part of immigration policy. In contrast the “public interest in extradition is systematically served by the extradition being carried into effect”

The Supreme Court decision

The Supreme Court unanimously allowed the appeal in the case of FK but rejected HH and PH’s appeals  (Lady Hale dissenting in the case of PH). The Court recognised that extradition cases should not fall into a special category that would entail Article 8 rights being effectively disregarded, and clarified that ZH Tanzania has a general application to cases of this kind. The United Nations Convention on the Rights of the Child requires that the best interests of the child shall be a primary consideration. It should be clear that these interests are not the primary or the paramount consideration, and that these interests can be outweighed by the cumulative effect of other considerations, including the seriousness of the offence.

PH and HH

In PH and HH’s case the seriousness of the drug smuggling conspiracy in which they were involved meant that the children’s rights could not be realistically prioritised over the public interest served by extradition. Furthermore both HH and PH had broken bail conditions. There were also concerns that the third child has been conceived very soon after the issuing of the EAWs and there was a possibility that the child had been conceived with the aim in mind of avoiding arrest.

Lady Hale’s Dissent.

Lady Hale dissented from the majority with regard to PH. Her main consideration was the impact of extraditing both parents on the youngest child of the couple, ‘Z’:

“The circumstances in this case can properly be described as exceptional. The effect upon the children, but Z in particular, of extraditing both their parents will be exceptionally severe. The effect of extraditing their mother alone would not be so severe and is clearly outweighed by the public interest in returning her to Italy. But the same cannot be said of the effect of extraditing their father. I have, not without considerable hesitation, reached the conclusion that it is currently so severe that the proportionality exercise requires the court to consider whether it can be mitigated.” (Para 79)

The majority, despite recognising the plight of the children if both parents were extradited, emphasised the seriousness of PH’s conduct and the fact that he was, in effect, a professional criminal with no personal mitigation regarding the offences committed.

FK

By contrast, FK’s case, involving a “comparatively routine” crime of dishonesty, was far less serious and the FK’s removal was disproportionate to the resulting interference in her children’s lives. There had been considerable delay in executing the warrant given that the offences were alleged to have occurred in 2000 and 2001. In the meantime, K and her family had made a new and blameless life in the UK. In the circumstances, the public interest in extraditing F was not such as to justify the inevitable harm to the interests of the youngest children in doing so.

In terms of the general approach to Article 8 in extradition cases, Lord Hope provided a useful summary:

“For the reasons explained in Norris the fulfillment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided.” (Para 132)

HH and the Future

The Coram Children’s Legal Centre has provided a useful summary of the likely consequences of the decision on extradition cases involving children in the future.

“Cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so the court ‘must be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country’ (Hope L at para. 60). However, ‘exceptionality is a prediction … not a test’ (Hale L at para. 33).

. . . The approach of the court to Article 8 rights is not ‘radically different’ as between extradition and expulsion cases. Although there will always be an extremely high public interest in enforcing extradition, the weight to be given to that public interest when set against the rights and interests of the child and the family will vary from case to case, depending on the seriousness of the offence and any delay in bringing prosecutions.”

HH thus builds on the decision in ZH Tanzania, and places children’s rights and the obligation of the UK to consider such rights on a firmer domestic footing.