The Supreme Court is currently hearing a series of joined cases concerning extradition and the rights of children including KAS or H v The Lord Advocate UKSC 2011/0217, BH v The Lord Advocate UKSC 2011/0210 , F-K (FC) v Polish Judicial Authority UKSC 2012/0039, R (on the application of HH) v Deputy Prosecutor of the Italian Republic, Genoa UKSC 2011/0128 and R (on the application of PH) v Deputy Prosecutor of the Italian Republic, Genoa UKSC 2011/0129.

The latter two appeals concern requests by the Italian authorities to extradite two parents, HH (the mother) and PH (the father) pursuant to European Arrest Warrants to serve sentences of imprisonment. Both are resisting extradition under the Extradition Act 2003, s 21 on the basis that their simultaneous extradition will constitute a disproportionate interference with their rights and the rights of their children under the ECHR, art 8. In addition, HH contests her extradition under s25(2) of the 2003 Act, that it would be oppressive to extradite her due to her mental health.

HH and PH have three small children aged 10, 7 and 2. Their youngest child (Z) was born after proceedings had commenced against both parties. In ordering their extraction, DJ Evans acknowledged the impact on the children:

“The worst case presented to me is that Z would be put up for adoption and X and Y would be fostered, but that might not necessarily mean keeping them together . . .

“I accept it is not in the interests of the children for them to be separated from either parent and all the more so from both parents . . . Separation from both parents will have a profound effect on the children’s physical and emotional health and may lead to multiple problems for the children in the future . . . ”

However, he held that the interference with art 8 must be “exceptionally serious” to outweigh the importance of extradition. Appeals against the extradition orders were dismissed by Laws LJ in the Divisional Court.

Background Facts

HH and PH were initially arrested on 23 September 2003 for escorting a cargo of 205.7 kilograms of hashish that had been imported from Morocco to Italy. They were both conditionally released but left Italy in breach of their conditions before their cases were heard. On 17 December 2004 both were convicted in their absence of drug trafficking and related offences by the Court of Genoa.

In August 2008 the Court of Genoa issued EAWs. Extradition proceedings against both were adjourned partly because of the ill health of HH, who was hospitalised under the Mental Health Act 1983 for nearly four months on 20 February 2009. On 25 March 2009 DJ Evans held that both HH and PH had deliberately absented themselves from trial in Italy and that he would have ordered both of their extraditions but for the possibility of an application under s25 of the Extradition Act due to HH’s ill health.

On 28 April 2009 the Italian Court of Cassation in Rome confirmed the convictions against both parties, sentencing HH to 9 years, 6 months and 21 days and PH to 4 years. Fresh conviction EAWs were issued against both parties. Following further delay, DJ Evans ordered HH’s extradition on 14 April 2010 and PH’s extradition on 21 June 2010.

Magistrates’ Court: the Legacy of Norris v USA (No 2)

In reaching his decision, DJ Evans relied upon the judgment of the Supreme Court in Norris v USA [2010] 2 AC 487, which concerned the extradition of a 66 year old man with poor health whose wife could not accompany him upon extradition due to her ill health. 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” (per Lord Phillips at para. 82).

Drawing an analogy with imprisonment or custody in the domestic context the Court noted that it is normally axiomatic that the interference with Article 8 rights consequent upon detention is proportionate. The Court stressed the public interest in extradition, referred to by Lord Hope as a “constant factor” (para. 91). It rejected the submission that it was wrong to apply a categorical assumption about the importance of extradition.

Divisional Court: The impact of ZH (Tanzania)

Subsequent to DJ Evan’s ruling, the Supreme Court gave judgment in the case of ZH (Tanzania) [2011] 2 WLR 148, which 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” (per Lady Hale at para. 23), in line with the UK’s national and international obligations as contained in article 3(1) of the United Nations Convention on the Rights of the Child 1989.

In the Divisional Court before Laws LJ, it was submitted 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; the proposition that “the best interests of the child shall be a primary consideration” is of general application. However, he concluded that the use of the indefinite article was significant and “a primary consideration” is not the same as “the primary consideration” (para. 59. Emphasis added). 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 line with Norris, and “That is not ipso facto supplied by an extradition’s adverse consequences for the extraditee’s children” (para. 60).

In so concluding Laws LJ stressed the contrasting features of immigration policy and extradition. He argued that the “striking of a reasonable balance” was an inherent part of immigration policy. In contrast, and relying on the judgment of Lord Hope in Norris, the “public interest in extradition is systematically served by the extradition being carried into effect” (para. 63).

Issues for Consideration

Each of the joined cases raises similar issues concerning the proportionality of extradition where the rights of children under Article 8 of the ECHR are engaged. Specific to HH and PH the following certified question, seeking clarity of the interpretation of recent case law, will be determined:

Where in proceedings under the Extradition Act 2003 the Article 8 rights of the children of the defendant are arguably engaged, how should their interests be safeguarded and to what extent, if at all, is it necessary to modify the Supreme Court’s approach in Norris v Government of USA (No 2) in light of ZH (Tanzania)?