England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		23 March 2010

1. LORD JUSTICE TOULSON: This is an appeal against an order for the appellant's extradition to Croatia, which is a category 2 state under the Extradition Act 2003. The Croatian authority seeks his extradition in respect of two matters. The first is for an offence of theft, which took place as long ago as 3 March 1995. He was tried in his absence on 23 November 2004 and ordered to serve 10 months' imprisonment. That judgment became final on 29 January 2005, and a warrant notice was issued for his detention. The other matter concerns the use of a false passport. The appellant used this in November 1999 in Sheffield, and then on 30 November 2004, when he was returning to Croatia with his wife and their son. Proceedings in relation to the passport offence were issued by the District Attorney's Office in Zagreb on 12 February 2009, and his detention was ordered on 12 March 2009, his whereabouts then being unknown.
2. On 20 January 2009, a provisional arrest warrant under section 73 of the Act was issued by Purdey DJ at the City of Westminster Magistrates' Court. The appellant was arrested on that warrant on 2 April 2009, and brought to the City of Westminster Magistrates' Court on 3 April 2009. An initial hearing was conducted, and he was released on conditional bail. A request for extradition was made to the Home Office on 29 April 2009. This was certified under section 70 on 30 May 2009 and served on all parties at a hearing on 15 May 2009.
3. A pre-trial review was conducted on 15 June 2009, before Riddle DJ, and thereafter there were a number of adjournments, but on 23 September 2009, Purdey DJ set the case down for a 3 day extradition hearing on 17 November, 26 November and 7 December 2009. Riddle DJ heard evidence from the defendant on 17 November, and heard submissions from both parties on 26 November 2009. He reserved his judgment, which he handed down on 7 December 2009. Two days later, the appellant lodged his notice of appeal. So, the matter has been proceeding over a long period of time.
4. One point only is taken now on his behalf by Mr Keith. It is submitted that his extradition would contravene his Article 8 rights, and that it would be disproportionate to extradite him. The basis of the argument is that his wife, whom he met in 2000 in England, suffers from mental health difficulties, and that he is essential for the upbringing of their son, O, who is now aged 10.
5. The Family Court has been involved in O's care and, as already mentioned in relation to the passport offence, the appellant went to Slovenia in September 2004. It appears that his wife and child returned alone to the UK. On 13 October 2004, O was taken into the care of the local authority. The appellant returned to the UK in or about April 2005. There was a supervision order made by HHJ Shipley in the Sheffield county Court on 16 January 2006, ordering that Sheffield City Council should supervise O for a period of 12 months from the date of the order. In the court bundle are reports from Cafcass and others, which date from that time.
6. I move on to more recent events. In order to contest the hearing before Riddle DJ, the appellant's solicitors sought evidence from various sources to show how essential it was that the appellant should be able to support O. The evidence included a statement from O's mother's General Practitioner, Dr Mann, dated 21 September 2009. In that statement he said that she had quite a long history of quite severe mental health problems and had been well known to the mental health team for 20 years. He noted that Social Services had been involved and concerned for the welfare of O, but that he remained within the family home. He was on the child protection register. He said that, on a physical level, she had recurrent headaches, but other than a variety of pains, had no other physical problems. There was no particular prognosis for her physical health, but she remained somewhat unstable mentally, and the future of her mental health was unstable. The report continued:

"You ask about the care she needs from J [another name for the appellant]. I find this difficult to answer, despite her rather erratic behaviour, she is coping in society, and just about able it bring up her child. J does add an element of stability to her home circumstances to enable her to do this. I am not sure how much J does help around the home. I am not particularly aware of what goes on between the two of them. I note, from a letter back in March, she complained that J would ridicule her if she was to accept any mental health related diagnoses. She has, during consultations with me, alluded to some rows or friction between them, but I do not think this has been particularly prominent. I am afraid I do not know how much care J provides for O".

7. The District Judge's judgment is impressively clear and detailed. After reviewing all the evidence before him, and concluding that the current position was, in his view, best described by Dr Mann, he said as follows:

"The defendant told me the only reason he is in this country now is because of his son. He expressed no affection for his wife, and she has not made a statement or given evidence in support of him. He has no work in this country and, so far at least, his asylum claims have been rejected. Apart from O's position, there is nothing remotely oppressive or striking and unusual about the family's circumstances. Overall, I am well aware of the limitations on my ability to decide in these proceedings complicated issues as to O's welfare. These are hard enough for a family court in possession of all of the recent and relevant evidence from experts. With the partial information I have, I believe I should be cautious. I will proceed on the basis that is there is a real risk of distress and difficulty if this defendant is returned to Croatia. I cannot rule out the possibility that O would, at some stage, be taken into foster care. The accepted wisdom in family proceedings is that children are best placed with their parents wherever possible. I am obviously less able than the doctor to speculate the outcome for O if this application is granted.

The court will always consider anxiously the problems that arise for children when separated from one or both parents. Against this, it is necessary to balance the importance of honouring international obligations. The allegations facing this defendant are serious, in particular the passport allegations are not only serious, but are alleged to have continued long after this defendant came to this country, and whilst he was at large, as I believe he was, from a Croatian prison.

On his own account, the defendant travelled in Europe on false documents in 2004, he says to escape British officials. It is a sad fact that those who suffer most when a person is accused of serious offending are often members of the family, and in particular children. Children may well not thrive when their father is away, for example in prison. Social Services intervention, already necessary in this case, may become more intrusive.

When I balance all of these factors, I accept that there may well be hardship for O if his father is extradited to Croatia. That hardship is likely to be less than it would have been up to a few years ago when he was younger and more vulnerable. Even so, it is still distressing for a court to have to make a decision, knowing it will likely bring hardship to a child. Nevertheless, I am forced to the conclusion that, in comparison with other cases involving extradition, the circumstances for this family are not striking and unusual. Extradition would not, on these grounds, be disproportionate, and it is not overall oppressive".

8. Factually, the only further development since then is that the local authority have given an indication that they are intending to start further care proceedings. A letter from Derbyshire County Council, dated 27 January 2010, says that, on the instructions from the Social Services Department, they are of the view that it would be in the interests of the family not to arrange a further POO meeting, that is, a meeting of all those concerned with the care of O, but would now enter into proceedings without further recourse to meetings with the parents, in order to avoid further distress for the parents. That letter seems to have re-enforced the view which the District Judge was prepared to accept, that there is a real risk that O may now be removed from his mother and put in the care of foster parents.
9. It remains the case that there is no evidence before this court from O's mother. If she thought that the appellant's assistance was vital to her in the bringing up of the child, one would certainly expect such evidence to be to have been provided.
10. Legally, there has been a further development, in that the Supreme Court has now given its judgment in Norris, and we have been reminded of the relevant passages in the judgments of Lord Phillips and Lord Hope.
11. In my judgment, no good reason has been shown for us to differ from the decision of the District Judge. When a parent commits serious offences and loses his liberty, there is an almost inevitable serious impact on the family. They are sometimes the worst sufferers. As Norris indicated, where there is going to be severe suffering to a family, and the offence itself is relatively trivial, it is possible to envisage circumstances where to order extradition would be disproportionate. But, as the judgments in that case confirm, such cases are likely to be very rare. I do not consider that this is one of them. The passport offence, is, as the District Judge observed, a serious matter.
12. The role of the appellant in his son's life is anything but clear from the evidence to which I have referred, and while there may well be care proceedings, we have no evidential basis for concluding that a difference to the outcome would be made by allowing this appeal. In any event, there remains the question of whether it would be right to prevent extradition on account of the possible detriment to O. That does involve a question of proportionality, and I would, on that, reach the same decision as the District Judge.
13. I would, therefore, dismiss this appeal.
14. MR JUSTICE GRIFFITH WILLIAMS: I agree. I have nothing to add, and I too dismiss the appeal.
15. MR KEITH: My Lord, only one further application. In the light of the content of this case, could I ask that the appellant's name, and his partner and his child's name be anonymised.
16. LORD JUSTICE TOULSON: Yes, I think that is absolutely right.
17. MR KEITH: I think there is a section 3 order in place already.
18. LORD JUSTICE TOULSON: No, you are absolutely right. Because if the judgment were published in its open form it would undoubtedly lead to the identification, or could lead to the identification of O. You are perfectly right. Therefore, in the report of the case, I have not actually used, I think, his wife's name, but if I have that should be anonymised. And the appellant's name should be put in the form of initials, and O should be O.
19. MR KEITH: My Lord, thank you. Might I have an assessment of legal aid?
20. LORD JUSTICE TOULSON: Yes.
21. MR KEITH: Thank you.
22. LORD JUSTICE TOULSON: Thank you very much.