England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17th August 2010

1. MR JUSTICE CRANSTON: This is an appeal under the Extradition Act 2003. The appellant challenges the decision of District Judge Evans on 18 May of this year ordering her extradition to Poland. In summary the grounds are that the District Judge ought to have decided that extradition was incompatible with Article 8 of the European Convention on Human Rights due to the effect on her 8-year old son, J.
2. The background is that the appellant was convicted and sentenced to five counts of burglary in 2006. She was present at the trial, although she was not in Poland at the time that the convictions were upheld in December 2006 by the Circuit Court of Poznan. The five offences included what we would regard as one count of domestic burglary where a considerable amount of property was stolen, electronic goods, jewellery, a stamp and coin collection and various antiques, to the total value of 29,000 Polish Zloty. The other offences involved commercial burglaries and amounts less than that; 14,000 Zloty in one case down to 300 Zloty in the fifth count. In each case the appellant, according to the offences as set out in the European Arrest Warrant, acted together with Andrzej Fornal, who is in fact her husband. In some cases they both acted together with other persons. Andrzej Fornal was also the father of her son, J. On her account she had nothing to do with these burglaries, but when she told her husband that she was to leave Poland he implicated her in the offending.
3. On her account the appellant came to this country to escape domestic violence. She arrived here in August 2006. It was just less than 2 years later that her son joined her. On her account that was because she needed to take proceedings in the Polish Family Court to extinguish her husband's parental rights and she also needed that time to obtain a passport for the son. During that period, between August 2006 and June 2008, J had been living with his grandmother and his step-sister, who is the appellant's daughter from a previous relationship.
4. A European Arrest Warrant was certified in March of this year. The appellant was arrested several days later and the matter came before the City of Westminster Magistrates' Court. The District Judge who heard the matter on 18 May ordered extradition. At that time an application was made for an adjournment so that inquiries could be undertaken in relation to the impact which the appellant's return to Poland would have on J. The District Judge refused the application for an adjournment. In the course of his judgment he accepted that J's challenging behaviour was related to separation from his mother at an early stage, and also that there was a real likelihood of J's being taken into care if his mother was extradited, given the absence of responsible family members in this country. In making that finding the District Judge accepted that the appellant's grandfather, who lived in the area where she and J were staying, was an alcoholic and therefore incapable of undertaking any responsibility vis-a-vie his grandson.
5. District Judge Evans acknowledged that a relapse of J's behaviour and emotional problems would occur as a result of learning of his mother's possible extradition. He then said this:

"On the facts of this case bearing in mind Norris and A v Croatia, I am satisfied that it would not be disproportionate to J's Article 8 rights to order his mother's extradition to serve a 2-year and 2-month sentence. If the defendant is unable to make suitable childcare arrangements for J then he may have to go into care. With remission for good behaviour the defendant will be free to return to the UK relatively shortly."

6. On 16 July 2010 a clinical psychologist, Dr Angela Wright, completed her report on J. The assessment had lasted for three hours. She interviewed J, the appellant and also made inquiries of other persons such as the bilingual education support worker for J and her report, Dr Wright explains that J had begun with mainstream school when he arrived in this country in 2008; that his behaviour quickly raised concerns; but that improvements began when he was given one to one support in class and input from the bilingual support worker. He was reported to have made many friends, both inside and outside the school. His behaviour at home, according to the appellant, had settled but was variable. The appellant told Dr Wright that if she were extradited there was no one able to care for him. Her father was unsuitable due to his age and alcoholism, and she did not want him to return to Poland, which would be unsettling for him.
7. Dr Wright's report then sets out the impact on J, J telling her that he would stab himself in the chest and would not be able to live should he be separated from his mother, the appellant. J also told Dr Wright that he never wanted to go back to Poland, that he did not want to be alive if he were to be sent there.
8. The bilingual education support worker told Dr Wright that she felt that J's behaviour was problematic, but that this was not uncommon with children with limited English language skills, and he was now generally behaving better, although his behaviour varied with mood. The school reports were to the effect that J was challenging and sometimes misbehaved by running away, kicking or hitting other children.
9. In her report Dr Wright sets out the conclusions that she reached expressed in terms of standards of measurement used in clinical psychology. She then says that understanding J's difficulties from early life experiences, a particularly significant trigger in their development were the two major disruptions that he experienced in his attachment relationships, first of all the separation from his mother after 2006 when she came to this country when he was only four, and secondly his rejoining with her when he was only six in a strange country, namely the United Kingdom. Dr Wright explains that disruptive and insecure attachments have been shown in studies to lead to emotional and social problems in children, as well as biochemical consequences in the developing brain. The consequences of disruptive and poor attachment relationships can lead to children developing behavioural disorders and depression, being apathetic, being slow to learn and being prone to chronic illness. Compared to securely attached children, attachment disordered children can be more aggressive, disruptive and anti-social. Dr Wright says this at paragraph 8.5:

"Despite these historical difficulties, J presents with a number of protective factors that have developed his resiliency to his life experiences. These include reparation of his attachment relationships to his mother, his alternative attachment figure, his maternal grandmother, offering him a degree of consistency and stability, his likeable character, and ability to use humour. The supports that both he and his mother have received since they were reunited from the Primary Mental Health team and the bilingual education support worker, as well as the one to one support provided by the school have begun to provide a safe, stable and consistent environment, which he needs in order to help him to develop his behavioural and emotional management skills, and overcome the effects of his insecure attachments."

10. Dr Wright then explains the prospects of separation leading to psychological difficulties for J, and then says this, at paragraph 8.9:

"Whichever outcome, such circumstances would likely lead to multiple disruptions and significant instability to J. On top of his early life challenges and progress towards recovering from these, his further life experiences are likely to have significant impact upon J's psychological well being. Further disturbance to his attachment relationships through separation from his mother is likely to lead to deterioration in his emotional state and his ability to regulate this as well as resurgence in his behavioural and social difficulties. These difficulties are likely to impact negatively upon his educational achievement and could lead to a variety of ongoing difficulties for J in the future."

Dr Wright concludes, however, that J's self-preported plans to kill himself were child like in nature but would need to be managed. She then goes on to refer to a number of studies which address the long term outcome for children with attachment difficulties.

11. Section 27 of the Extradition Act 2003 provides that on appeal this court can allow the appeal if the conditions set out in the section are satisfied. Sub-section 4 of section 27 provides as follows:

"(4) The conditions are that -

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing.

(b) the issue or evidence would have resulted in the appropriate judge deciding the question before him at the extradition hearing differently.

(c) if he had decided the question that way he would have been required to order the person's discharge."

Section 21 of the Act provides that a judge must discharge a person if he or she decides that a person's extradition would be incompatible with their rights under the European Convention on Human Rights.

12. The leading authority in relation to the interface of extradition and Article 8 is Norris v the Government of the United States of America (No. 2) [2010] UKSC at 9; [2010] 2 WLR 572. In that case the Supreme Court held that the likelihood of interference with family life was inherent in the process of extradition and the consequences of interference with those rights had to be exceptionally serious before they could outweigh the public interest in giving effect to requests for extradition so as to make extradition disproportionate. The leading judgment was given by Lord Phillips. In the course of his judgment Lord Phillips says:

"56 The reality is that only if there is some quite exceptionally compelling feature or combination of features that interference with family life in consequence of extradition would be other than proportionate to the objective that extradition serves...

Instead of saying that interference with Article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and helpful to say that the consequences of interference with Article 8 rights must be exceptionally serious before this can outweigh the importance of extradition."

13. In paragraph 62 Lord Phillips explains that the relevant inquiry is fact specific. That the judge needs "to consider whether there are any relevant features that are unusually or exceptionally compelling".

"65...the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who has the sole responsibility for an incapacitated family member this combination of circumstances might well lead the judge to discharge the extraditee..."

14. Lord Phillips then goes on to consider the application of those principles to the case of Mrs Norris, who was on her account to remain in the United Kingdom when her husband was to be extradited to the United States. Mrs Norris described the deteriorating quality of life which she and her husband had faced after the extradition request had been made. There would be a worsening picture if Mr Norris had to spend any length of time in custody in the United States, given that her psychiatric condition prevented her from relocating there. A GP had said that there had been a devastating effect upon Mr Norris and his family. A psychiatrist from King's College London prepared a report to the effect that he had no doubt Mrs Norris' mental suffering and psychological deterioration would greatly worsen should her husband be extradited. Nonetheless Lord Phillips and other judges of the Supreme Court decided that extradition did not breach Article 8.
15. Three other decisions were canvassed before me, two from Scotland and one from this jurisdiction: Howes & Shanks v Edinburgh Sheriff Court [2008] WL 2033440; Reid v Her Majesty's' Advocate [2009] WL 6527 and A v Croatia [2010] EWHC 918 (Admin). Each of those cases involved the separation of a child from its parent as a result of extradition of the parent. In each case the court held that separation did not constitute a disproportionate breach of Article 8.
16. In the careful decision of Sheriff McColl in Howes and Shanks there is an extensive discussion of the possible impact of the extradition of the mother and her partner to the United States on their children. She said this:

"The fact that the respondents are the parents of four children cannot, in my opinion, as a matter of principal or law bring the case within the exceptional range. It cannot be correct that parties who are alleged to have taken part in criminal conduct in another state and who have no children or a lesser number of children can be assessed as having lesser and non-exceptional interference of their rights in extradition than those said to have been involved in similar conduct who happen to have more children."

At paragraph 75 the Sheriff agreed that it was uncertain as to what would happen to the children if the extradition occurred. The Sheriff ultimately decided that extradition was compatible with their Article 8 rights.

17. In the Reid case the Sheriff quoted from the decision in Howes and Shanks. That was a case where a mother was to be extradited to Spain on the death of her young son, who had ingested methadone and diazepam, possibly her partner's. He consented to extradition. She now had a 6 month old daughter. Her case was that the bond with her daughter would be broken by the possible separation of years and there was a risk that she would be taken into care. Extradition was upheld.
18. In A v Croatia a father was to be extradited on two charges, the most recent involving a passport offence. His son was 10 and his case was that his wife suffered mental health problems, which meant that he was essential for the upbringing of the son. The Divisional Court concluded, in the words of Toulson LJ, that Where a parent committed a serious offence and lost his liberty there was almost inevitably going to be a serious impact upon the family, who were sometimes the worst sufferers, but as Norris had indicated, where there was going to be severe suffering to a family and the offence was relatively trivial, that might constitute a circumstance where to order extradition would be disproportionate. However Toulson LJ added that as the judgments in Norris confirmed, such cases would be likely to be rare.
19. In his skillful arguments before me, Mr Newton contends that the report of Dr Wright throws a completely new light on the situation. That report identifies the effect upon the appellant's son, J, if the appellant were to be extradited to Poland. J, as the report demonstrates, does have both learning difficulties and behavioural problems. He is wholly dependent, in this country at least, upon the appellant, and there is no alternative to local authority care should he be extradited. If District Judge Evans had had the report of Dr Wright before him he would have decided the appellant's case differently, and having done so would have ordered the appellant's discharge.
20. Mr Newton contends that this is one of those rare cases identified in Norris because this child, J, would be without any assistance in the world should the appellant be extradited. He had come on in leaps and bounds since he arrived here in 2008, but the structure provided by his mother would no longer be available.
21. The three cases, the two from Scotland and the A v Croatia case from the Divisional Court, were factually distinguishable, in that in each case there was a possibility of some additional support to the children in those cases, for example in Howes and Shanks the grandmother might well have stepped in to provide care again. In A v Croatia the mother, albeit she had mental health difficulties, would at least be there on the spot once the partner had been extradited. The Reid case emphasised that separation in the case of a very young child is different from the separation of a mother and child of the age of J. It was, in Mr Newton's submission, the combination of J's vulnerabilities on the one hand and the impact of his mother's removal, given that she was the only available support in this country, which took this case into a different category, the very rare category identified in Norris.
22. Notwithstanding the strong submissions which Mr Newton has made on behalf of the appellant, I have concluded that in this case the report of Dr Wright is not such as to put this case into the exceptional category identified in Norris. These are not trivial offences, involving as they do one count of domestic burglary and four counts of commercial burglary. The possibility identified by Lord Phillips that extradition would be disproportionate where there will be a severe suffering to a family, but the offence itself is relatively trivial, does not arise. There is no doubt that J has had a difficult upbringing, partly through the appellant leaving him in Poland in 2006. He has also had to adjust to a new country and a new language. There is no doubt he has made significant progress and it is likely, as Dr Wright explains, that there will be a regression when his mother is extradited. There certainly has been greater stability in his life and that will be disrupted by his mother's return to Poland but, as Norris makes clear, the circumstances will be very rare so as to make extradition disproportionate under Article 8.
23. I have given the facts of this case anxious scrutiny. I have concluded that this is not one of those exceptional cases. I dismiss the appeal.
24. MR NEWTON: I am grateful. Could I apply for a section 39 order in respect of the Children and Young Persons Act in respect of J. No order is currently in place and it should be.
25. MR JUSTICE CRANSTON: What does it do?
26. MR NEWTON: It prevents the reporting of his name.
27. MR JUSTICE CRANSTON: Yes. Anything else? No? Thank you.