England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th December 2013

Lady Justice Macur DBE :

1. This is an appeal against the decision of District Judge Zani on 30 July 2013, ordering the extradition of ML ("the Appellant") to Sweden in response to an accusation European Arrest Warrant issued by the Prosecutor's Office, Helsingborg("the Respondent") on 8 October 2012, certified by the Serious Organised Crime Agency on 4 February 2013. The warrant alleges "gross abduction of children" in respect of her two children, C and S now aged 10 years 7 months and 4 years 4 months respectively. The Appellant was arrested on 20 February 2013.
2. The Appellant and the children have resided in the United Kingdom since late June 2012. All three are Swedish nationals. The children were habitually resident in Sweden and in the care of the Children's and Education Board, Bjuv Municipality, prior to their removal clandestinely by the Appellant during a period of unsupervised contact. The children had been living separately from each other but in the care of extended family since August 2010 by order of the Administrative Court in Malmo, confirmed on appeal by the Administrative Court of Appeal in Gothenburg. Subsequent applications by the Appellant to discharge the order failed, most latterly on 27 March 2012. The Appellant had no prior connexion with the UK and chose it in furtherance of her plan to self rehabilitate the children to her care in defiance of Swedish court orders. Their location has been known to Swedish authorities since February 2013.
3. There is no issue but that the Appellant effectively concedes the "wrongful removal and retention" of the children in breach of Article 3 of the Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention"). The Appellant apparently opposes any prospective application by the Swedish social service authorities to obtain the summary return of the children to Sweden regardless of her own situation vis a vis the extradition process, reliant upon establishing their 'settlement', "grave risk that return to Sweden would expose C and S to psychological harm or otherwise place them in an intolerable situation" and C's own articulated objections to return, to trigger the so called 'defences' provided by Articles 12 and 13. Surprisingly, no such application has been made albeit that there is indication that "all documents relating to the application under the Hague Convention for the return of the children" were sent "to the ministry for foreign affairs in Sweden" on 8 April 2013.
4. So this appeal presents an unusual aspect in that the Article 8 (ECHR) rights of the children who are the subjects of the particular criminal behaviour detailed in the warrant are used to base the Appellant's objections to extradition specifically in that they will be deprived of their parent if she is returned to Sweden whether by dint of fact that they will remain in the UK or else be removed from her care pursuant to the existing Swedish order.
5. The Appellant seeks to justify her actions by attacking Swedish domestic law, procedure and social work practice relating to public child care proceedings by adverse comparison with UK law, procedure and practice.
6. The Appellant complains about outcome and the alleged inadequacy of her legal representation but does not suggest that did not receive a fair hearing in breach of her Article 6 (ECHR) rights. The children were separately represented. Their legal representative did not support their re-unification with the Appellant.
7. Mr Hawkes, on behalf of the Appellant, places reliance upon the report of "The Nordic Committee for Human Rights" into "the very prevalent and destructive Child Removal Cases being practiced, on a daily basis, in the neighbouring Nordic countries" submitted to the Organs of the Council of Europe on 10 December 2012. It is an entirely misconceived argument. Even if admissible in evidence or permissible to cite in authority the weight that would be afforded to it is negligible. The motives of the authors may be honourable, their expertise may be widely recognised but the report remains the unchallenged opinion of one set of 'professionals' that does not necessarily accord with enacted domestic Swedish law.
8. I consider it is unquestionable but that this court should unhesitatingly refuse to be drawn into any comparison of the principles and application of law relating to public child care between the UK and a fellow signatory state to the Hague Convention per se, or else act as an ad hoc appellate jurisdiction in any particular case. Mr Hawkes explicit arguments as to the former and implicit invitation as to the latter on behalf of the appellant must fail at the starting blocks let alone at the first hurdle.
9. This stance is entirely in accordance with the statement of principle of Toulson LJ (as he then was) in giving the opinion of this court in Targosinski [2011] EWHC 312 (Admin) at paragraphs 5 and 11, vis:

"The framework of the European Arrest Warrant scheme is constructed on a basis of mutual trust between the parties to the Convention, all of whom belong to the Council of Europe. The starting point is therefore an assumption that the requesting state is able to, and will, fulfil its obligations under the Human Rights Convention."

"Given the presumption with which the court starts, it will require clear and cogent evidence to establish that in a particular case the defendant's extradition would [contravene] his human rights."

10. In this regard and in this context I find there is no question of establishing a past or future flagrant breach of the Appellant's Article 8 (ECHR) rights.
11. In so far as it is relevant I venture to suggest that a judge of the family division hearing an application for summary return pursuant to Hague Convention proceedings would give the same short shrift to such arguments.
12. The interests of comity prevail but for my part, and so the Appellant should not labour under any false impression, I would not endorse the confident prediction of Mr Hawkes that, in the UK, these children would not have been removed from their mother, the Appellant in the circumstances described in the 2010 judgments, nor that they would by now necessarily have been reunited to her care.
13. In this case I resist any argument that the outcome of any 'Hague Convention' application that may be made for the return of the children will be determinative of the application for the Appellant's extradition. However, in so far as it is relevant for this court to predict outcome , it is important to correct Mr Hawkes submissions to the lower court and this including that "Articles 12-13 of the Hague Convention..requires a proper assessment of the children before they are returned".
14. Hague Convention hearings proceed on the basis that the welfare of the particular child will be assumed to require their prompt return to the country of their habitual residence in order that their welfare interests may be determined save in the comparatively rare situations where Article 12 and/or 13 reasons are established to grant discretion to the court to refuse summary return. A welfare assessment on the merits of competing parental care/guardianship as such does not ensue in the UK courts in such applications. The question of "settlement" does not merely denote an established place of residence and will be viewed in the light of all circumstances, including the fact that the relevant child's ability to "settle" emotionally will be likely compromised by a fugitive state of existence. The child's wishes are considered in the light of their chronological age, maturity and understanding and are not determinative. It is a "grave risk" of exposure to "physical or psychological harm" or otherwise return placing him/her in an intolerable situation that must be established, not a "real risk". It is the exception rather than the rule for the court to hear oral evidence. There would usually be no need for the physical presence of a party to the proceedings unless giving evidence of fact supporting "consent" or acquiescence of the left behind parent neither of which considerations apply here.
15. These matters aside, this court must now contemplate the present circumstances appertaining in the instant case and in the context of the application before it bearing in mind that "It is not enough to dismiss these cases in a simple way – by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it." (HH supra @ paragraph 34).
16. The Appellant has established a home for the children which albeit described as "cramped" and therefore "unsatisfactory" has endured for some 18 months. They are schooled and socialise appropriately. There is no extant application for the summary return of the children to Sweden. There is no alternative carer in the UK in contemplation, save the local authority. The Swedish social services have indicated an intention to place the children with the same foster parents as before. They will be separated. The Swedish social services have not ruled out the possibility of reunification of mother and children in the future. However, contact with the mother in the short and medium term will be dependant upon the outcome of criminal proceedings, consequent sentence and prison regulations.
17. A psychological report prepared by Graham Flatman dated 6 June 2013, whilst emphasizing that the same cannot constitute either a parenting assessment, social work assessment or risk assessment detects "no child care concerns", no evidence of "aberrant family dynamics" and opines that "the removal of these children from their mother's care would be emotionally harmful to them" and "[i]f they were separated from each other again, under any circumstances, this would also constitute a significant loss". He comments on the loss of school placement and friends and advises that if the Appellant is to be extradited, it will be essential for the children to have direct regular contact with her. An "initial assessment" of London Borough of Social Services dated 4 April 2013, comments "There does not appear to be any immediate risk to these children from the social worker's own assessment".
18. These reports provide information concerning the children's recent upbringing and secure attachment to their mother. However, whilst they may assuage anxieties as to the present quality of care provided by the mother, and have been subtly utilised to advance the argument attacking Swedish child care policy, for my part they do not actually reveal any factors which predicate a conclusion that "the consequences of the interference with family life will be exceptionally severe" (Re HH supra, @ paragraph 8(7)) in this particular case in the particular circumstances of the mother's removal and imprisonment.
19. Obviously there will be an interference with the Article 8 rights of the Appellant and the children in the event of her extradition to Sweden and subsequent imprisonment. The critical issue is whether the effluxion of time and subsequent good parenting of the children by the Appellant has "diminish[ed] the weight to be attached to the public interest and increase[d] the impact upon private and family life." (Re HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent) and others [2012] UKSC 25@ paragraph 8(6).)
20. In that the Appellant seeks to avoid extradition on the basis of a lack of information concerning the arrangements for the children to exercise contact to their mother in the event of her imprisonment and the nature of their likely domestic circumstances in Sweden or the UK, it is pertinent to note she strives to rely upon the uncertain situation which she will create by her refusal to contemplate the children's voluntary repatriation to Sweden in the event of her extradition. In my judgment it is not an objectively reasonable stance since her expressed intent must surely traverse welfare considerations of extended family care and proximity to the mother to exercise contact, in whatever form will be permitted, if she is imprisoned. The interference with the Article 8 rights of the children in these circumstances are thereby exacerbated by the actions of the Appellant and not her prospective extradition and her arguments on this platform should be rejected. To do otherwise would permit this Appellant to "ride a coach and horses" through the extradition process. (See C v C (Minor) (Abduction: Rights of Custody) [1989] 1 WLR 654 sub nom Re C (A Minor) (Abduction) [1989] 1 FLR 403.)
21. Mindful of Lady Hale's judgment at paragraphs 82 to 86 in HH (supra) I have otherwise contemplated whether there is sufficient information about these children's future circumstances in the event of the mother's extradition to enable the court to assess the interference with their Article 8 rights which will follow upon their mother's extradition. I conclude that there is.
22. These children remain placed in the nominal care of the Swedish social service agencies. The Swedish social services plan is clear. The children will be returned to their previous extended family foster placements. Contact will be resumed between mother and children subject to the exigencies of any prison sentence and the arrangements to be made with the prison authorities. Further assessments will be conducted as to the children's needs and whether they may be safely returned to their mother's care.
23. If they remain in the UK in the absence of their mother it is necessary and appropriate to assume that their status as children in care will require that they be received into the care of the Lewisham local authority. I would expect liaison to occur between the relevant Swedish and UK authorities to ensure their welfare needs are met appropriately, including consideration of their return to Sweden in order to be placed with their extended family and to be proximate to their mother. This return need not necessarily be under the auspices of an order in Hague Convention proceedings. See In the matter of KL (A Child) [2013] UKSC 75 at paragraph 28 for the most recent authority on this point.
24. Whilst there is no evidence in this case as to prison visiting arrangements for the children to exercise contact with their mother, no attempt has been made by the Appellant to provide such information although her Swedish advocate gives opinion as to length of sentence likely upon conviction. It is extraordinary for the Appellant to be denied visiting rights. In these circumstances there is no reason to presume other than the rights and needs of the children will be borne in mind. See paragraphs 9 and 10 above
25. We have been referred to A & B v Central District Court of Pest, Hungary [2013] EWHC 3132 (Admin) where uncertainty as to child care arrangements for a 9 year old child V led the court to refuse extradition of her mother. The Court in that case warned of the "difficulties in comparing cases", saying that "[i]t is dangerous to ask the court to descend into what may be a mechanical exercise of comparing those features which are similar and those which are dissimilar". Mr Hawkes attempts to do so in this case make the point. Each case is fact specific. These children's circumstances are entirely different to those of V.
26. Mr Hawkes comes close to suggesting, if not explicitly doing so, that child abduction by a parent from the care of the state is less serious than the removal of a child by one parent from another. He obviously does so mindful that this Appellant seeks to justify her actions by complaining of the children's initial removal from her care upon what she would classify as the most spurious of grounds.
27. I do not countenance such an argument. This is not a criminal offence tantamount to removing one's own property. Child abduction is almost always pernicious albeit in varying degree. There is considerable public interest in the safeguarding of a child's welfare, but particularly so when arrangements have been devised on their behalf by a competent court. The removal of a child from their parent by court order is a draconian step, usually hedged about by procedural safeguards, which may be anticipated until the contrary be proved in the case of a Convention signatory. A parent who arbitrarily defies the court's decision of the necessary protective measures to protect the future well being of a child commits a serious criminal offence not only contemptuous of the court order but also, objectively viewed, the emotional and/or physical welfare interests of the children involved. The culpability of the Appellant is high. The weight of public interest in deterring such behaviour is equally high.
28. The Appellant's Advokat, Torbjorn-Jonsson advises that in Sweden the Appellant may expect to receive an immediate custodial sentence of between 15 and 18 months. Whilst not inevitable, for the reasons outlined in paragraph 22 above I regard it most probable that a UK court in similar circumstances would hand down an equivalent sentence. In these circumstances, the judgement of Lord Judge at paragraph 131 and 132 becomes pertinent.
29. There are circumstances when the outcome of the balancing exercise means that the court will have to trust the care of the children to the state. Whilst that balancing exercise will necessarily incorporate the vulnerabilities of the child/ren involved in this case this court cannot avoid attaching significant weight to the children's previous living arrangements pursuant to court order.
30. In my view the balance remains firmly in favour of the public interest given the nature and seriousness of the crime. The Appellant selected the UK as her destination, perceiving an advantage in the application of domestic child care public proceedings to create a "safe haven" in her plight. The interference with the children's Article 8 rights cannot trump the public interest or UK international obligations in this case.
31. For the reasons above I would reach the same conclusion whether this case is to be considered as a "foreign" or "domestic" case. I do not think Mr Caldwell's arguments, on behalf of the Respondent, as to necessary distinction of approach require resolution.
32. In Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin), paragraph 23, Lord Justice Sedley iterated the test to be applied in the appellate jurisdiction in considering whether the District Judge "ought to have decided a question…differently". Whilst rendering "the original issues very nearly at large" there were however "obvious restrictions, first that this court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety." It is a principle worthy of re-iteration in a case such as this.
33. The Appellant fails to discharge the burden upon her in establishing the grounds under section 27(3) or (4) of the Extradition Act 2003 necessary to succeed in appeal. The lower court's judgment is a well articulated decision which has weighed all relevant facts in the balance and is not wrong in law. I would dismiss her appeal and refuse leave to appeal.
34. The arrangements for the children must be concluded with all due haste. The outcome of this appeal must be notified to the Lewisham and Swedish Children's Social Services forthwith.

Mr Justice Silber:

35. I agree.

Appendix

Article 3 The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

c) In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.