These two cases involved the extradition of parents of young children under the Extradition Act 2003. In PH and HH, an Italian Court issued a European Arrest Warrant (EAW) in respect of both parents of three children who had been convicted of drug trafficking and fled Italy while on bail. In FK, a Polish Court issued an EAW in respect of the mother of five children for alleged offences of dishonesty.
The cases concerned the compatibility of extradition with the rights of the appellants’ children to respect for private and family life under Article 8 of the ECHR and whether the test of how to consider Article 8 in extradition cases as set out by the Supreme Court in Norris needs modification in light of its treatment by the Court in ZH (Tanzania), an immigration case.
The case was heard by the UK Supreme Court on 5 – 8 March 2012, together with another case from Scotland, BH and KAS v The Lord Advocate. Judgment was given to both cases on 20 June 2012.
The Court unanimously found that in FK the Article 8 rights of her two young children outweighed the public interest for her extradition. Over a decade had passed since the alleged offence and while the offences of dishonesty were not trivial, they were of no great gravity. Such as Lord Judge said, this combination of circumstances that can “fairly be described as borderline… were not trivial, but nor were they of the utmost serious”, leading the Court to find that “the damage to the interests of the two youngest children would be wholly disproportionate to the public interest in the extradition of the appellant.”  There was also a delay in seeking the EAW.
On the other hand, the Court unanimously found that HH should be returned to Italy. HH had been found guilty of the much more serious offence of drug trafficking, which carries with it a lengthy sentence and is a transnational crime. Alongside this, HH was not the primary carer of her children due to her own health concerns. As Lady Hale noted: “If the mother were extradited alone, the children would no doubt grieve for her, and worry about her, but they have been used to her absence in hospital before. They have not been used to relying on her for their day to day care and emotional support.”  These considerations, coupled with HH having played the greater part in the conspiracy and the correspondingly longer sentence imposed upon her, determined the Court to dismiss her appeal and allow for her extradition.
With regards to PH, the Court found this decision the most difficult. All but Lady Hale were unanimous in deciding to extradite PH along with HH. Lady Hale would have refused his extradition because of the severe detriment it would cause to his children and the lesser culpability he held in the offence. She placed weight on the possibility that Italy could issue a new EAW in the future when the effect of the children will be less severe. The other Justices did not think this approach was appropriate, as Lord Hope said “it is not open to us, the requesting court, to question the decision of the requesting authorities to issue a warrant at this stage. It is their case, not ours.” They concluded that despite the devastating impact losing both parents would have, the public interest favoured extradition for such a serious crime.
The Court also asserted that the test in Norris did not need modification, rather that it has been misapplied in subsequent cases. Norris did not require a test of exceptionality which could create artificial and impossible standards but an assessment of proportionality of the interference. As Lord Judge explained:
“Norris did not decide that the article 8 rights of the family of the proposed extradite can never “prevail” unless an “exceptionality” test is satisfied. What it suggested was that when article 8 rights were properly examined in the extradition context, the proportionality assessment would be overwhelmingly likely to be resolved in favour of extradition. The description of the likely results of the extradition process appears to have been adopted as a forensic shorthand for the test. Just because courts fully appreciate that children who are subjected to long term separation from their parent or parents will almost without exception suffer as a result, the application of stark “exceptionality” test may, even if unconsciously, diminish the weight to be given to the interests of the children” .
JUSTICE was represented pro bono by Alex Bailin QC, Mark Summers and Aaron Watkins of Matrix Chambers and Peters and Peters LLP.
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