Judges reminded to correctly assess right to family life in extradition cases

Public interest in extradition cases is likely to outweigh article 8 rights unless interference with family life is exceptionally severe, as can be the case where children’s well being could be affected, the Supreme Court has ruled.

Giving the lead speech in HH and PH v Genoa Deputy Prosecutor and F-K v Polish Judicial Authority [2012] UKSC 25, Lady Hale said English judges were expected to honour Britain’s obligations under the European Arrest Warrant system but that this was “subject to the need to respect fundamental rights”.

In particular, she continued, this “did not absolve us of the duty to weigh the competing interests as required by article 8”.

The court was hearing appeals against extradition orders brought by a British couple wanted to serve drugs related sentences in Italy and a Polish mother resident in Britain facing charges of theft and dishonesty in Poland.

All appellants had young children in Britain and argued that returning them to Italy and Poland respectively would affect the children so seriously as to be a breach of their right to family life.

Lady Hale said the seriousness of the offences in respect of which extradition was sought would have to be considered in the balancing exercise between public interest and children’s rights in extradition cases (see box below).

However, she continued, a distinction should be made depending on whether a decision to extradite a parent directly or indirectly affected a child’s upbringing.

If the former, the child’s best interests were “the paramount, or determinative consideration” but if the latter, they were only “a primary, but not the paramount consideration”, she said.

In the case of PH and HH, the justices ruled by a 6:1 majority that the couple, who had fled Italy where they still had to serve eight years and four months and nine and a half years, should be extradited.

Lady Hale dissented, saying that the appeal by PH – the father – should be allowed as he had become the primary carer after HH’s mental health collapsed.

The court unanimously allowed F-K’s appeal against the extradition order on the basis that her two youngest children – born in the UK – were dependent on her that, at a value of £6,000, the offences for which she was wanted were minor, and that the allegations against her now dated back to more than ten years.

Jodie Blackstock, a director at JUSTICE, which intervened in the case, said it was “encouraging that the justices applied the proportionality test which we have long been saying is necessary in these cases”.

Children Charity Coram also intervened in the case.

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Public interest v children’s rights

Lady Hale laid down a seven-point test to determine the balance to be struck in extradition cases between public interest and the right to family life:

“(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

(2) There is no test of exceptionality in either context.

(3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

(4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no “safe havens” to which either can flee in the belief that they will not be sent back.

(5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

(6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

(7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.