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
		15 December 2016

Mr Justice Supperstone :

Introduction

1. The Appellant appeals against the decision of District Judge Grant made on 2 June 2016 to order her extradition to Poland pursuant to a conviction EAW issued by the Respondent on 23 June 2014 and certified by the NCA on 5 May 2015.
2. The EAW relates to seven shoplifting offences committed between April and May 2009 in which the Appellant, acting with another, stole digital cameras, clothing and accessories and perfume with a total value equivalent to £2846 at the time. She was convicted and sentenced in her absence (but in her knowledge) to two years' imprisonment on 15 March 2010. The sentence was suspended on condition that she pay compensation and maintain contact with her probation officer, but she failed to do so and the sentence was activated on 26 March 2013. It remains to be served in full.
3. The sole ground of appeal is that the DJ erred in finding that extradition would be in accordance with the rights of the Appellant and her family pursuant to Article 8 ECHR.
4. When granting permission on 19 October 2016 I stated that I did so having regard in particular to the issue of who will have care of the Appellant's two children in the event of her extradition. Kacpur is now aged 5 and Jakub is aged 8.
5. I ordered that further evidence should be filed in relation to that issue as follows:

i) The local authority is to file and serve an up-to-date report regarding attempts to contact the father of the Appellant's children [Mr Kielpinski] and giving an update on who is to have care of the children in the UK in the event of the Appellant's extradition; and

ii) The Appellant is to file and serve a further statement detailing the issue of family in Poland and their suitability for taking care of the children in the event of a return to Poland.

The decision of the District Judge

6. At page 11 of his judgment the DJ considered the factors in support of extradition and the facts militating against extradition in accordance with the decision in Celinski and Ors [2015] EWHC 1274 (Admin).
7. The factors in support of extradition are (1) the public interest in this country complying with its international extradition obligations and not being regarded as a haven for those fleeing foreign jurisdictions; (2) the fact that the Appellant is a fugitive who left Poland whilst subject to conditions; (3) the EAW relates to seven offences involving relatively high value retail goods and the Appellant committed two further offences after the suspended sentence was imposed; and (4) there is an outstanding sentence of two years' imprisonment to serve.
8. The factors that militate against extradition are, first, the Appellant has led an industrious life since her arrival in the UK. She is of good character in this country. The second and third factors noted by the DJ (at p.12 of the Decision) need to be set out in full:

"2. She has established a family life in this country with her two young boys. Although she has concerns about her ex-partner's ability to care for her boys if she is extradited the Section 7 report does not express any specific concerns about Mr Kielpinski who specifically confirmed to the writer of the report that he is willing to look after both boys in her absence. In those circumstances I am satisfied that Ms Parlinska is not a sole carer although I do not underestimate the emotional upset that her extradition will cause to both her and her two boys.

3. Ms Parlinska is suffering from depression which is being well treated by medication. I have read the documents supplied to the court about her medical history. Her extradition will inevitably cause her considerable anxiety but I suspect that these ongoing and unresolved proceedings are adding to her feelings of anxiety and her depression. If she is extradited she should ensure that she is accompanied by a bundle of her medical notes for the attention of the Polish prison authorities. I have no evidence before me which suggests that she will not be able to obtain suitable treatment whilst in prison in Poland."

9. The finding that Mr Kielpinski is willing to look after both boys in the Appellant's absence was one that the DJ was entitled to make on the basis of the evidence before him. The Section 7 report written by Ms Nicole Gunter, a social worker, dated 4 May 2016, recorded at pages 9-10 under the heading "Wishes of the parents" as follows:

"Both Ms Parlinska and Mr Kielplinski wish to remain as friends, who both provide parenting and care to the children. Although they are no longer in a relationship, they appear to remain amicable for the wellbeing and stability of the children.

…

Mr Kielpinski has made it clear that he would care for both children should this be required, in order for the boys to remain together, despite him not being Jakub's birth father."

10. Ms Natasha Draycott, for the Appellant, submits that whilst the Appellant accepted that she was a fugitive, the DJ failed to give enough weight to the age and nature of the offending, the Appellant's rehabilitation and law-abiding life in the UK, her mental health and the private and family life which she has developed. I reject this submission. It is clear that the DJ had proper regard to all these matters.
11. I am not persuaded that the decision of the DJ was wrong on the evidence then before him.

Events since the decision of the District Judge

12. On 30 August 2016 Ms Gunter wrote an addendum to the Section 7 report which includes the following:

"Based on the recent brief discussions I have had with Ms Parlinska and the concerns she has raised in regards to Mr Kielpinski's behaviour, there would be concerns around Mr Kielpinski's ability to safely care for the children and to meet their needs on a short and long term basis. It must be duly noted that the concerns raised by Ms Parlinska in respect of Mr Kielpinski have not been challenged or investigated due to lack of engagement with Mr Kielpinski at the time of writing this addendum, despite several attempts by myself to meet with him, to include telephone calls, home visits and communications left at the address."

13. The local authority, in accordance with my order, has filed a short report in the form of a letter dated 30 November 2016 which states that they have been unsuccessful in making any contact with Mr Kieplinski. Ms Gunter writes:

"I am able to inform you that unfortunately I have been unsuccessful in making any contact with Mr Kielpinski to discuss the situation, to explore any current contact arrangements between him and the children and to explore his views in regards to what support he is able to provide for the boys, in the short and long term future should Ms Parlinska be extradited."

14. The Appellant in a witness statement dated 29 November 2016 (made pursuant to my order, states that she is currently working and taking care of her two children "as a single parent". She separated from Mr Kielpinski earlier this year "because he had a drink problem" and she "was concerned about his ability to care for the children". She continues:

"He moved out and I understood that he got a council flat with two bedrooms stating he required the second bedroom to be able to care for my two children when they visited. He has not seen the children for a long time. They have not stayed at his flat since he moved. Whenever he had come to the house he was always drunk.

I found out that he had actually sub-let his second bedroom, and I reported this to the council.

When I contacted him he told me that he would not be able to cope taking care of the children himself and that he did not want to do this."

15. Mr Benjamin Seifert, for the Respondent, submits that the evidence does not demonstrate any clear indication from Mr Kielpinski that he is no longer prepared to take care of the children, should this be required. That being so the situation has not necessarily changed. Further, if he will not care for the children, social services will have to take them into care. Mr Seifert submits that the court cannot be satisfied that the new evidence would have resulted in the DJ deciding the case differently, so that he would have ordered the Appellant's discharge. The fresh evidence is not, he submits, decisive (see Fenyvesi [2009] EWHC 231 (Admin) at para 35).
16. It seems to me that there has been a material change of circumstances since the decision of the DJ. I reach this conclusion having regard to the addendum to the Section 7 report (see para 12 above), and the latest report of Ms Gunter of 30 November 2016 (see para 13 above). The inference I draw from the inability of the local authority to communicate with Mr Kielpinski over the last few months, despite all the efforts they have made, is supported by what the Appellant says in her latest witness statement of 29 November 2016 (see para 14 above). Whatever the position may have been at the time of the Section 7 report, it appears that Mr Kielpinski is not now prepared to take responsibility for the care of the boys, in the event of the Appellant's extradition.
17. I am also not satisfied on the basis of the fresh evidence that Mr Kielpinski has "[the] ability to safely care for the children and to meet their needs on a short and long term basis" (see addendum to Section 7 report at para 12 above).
18. Ms Gunter recorded in the Section 7 report the Appellant's concerns about Mr Kielpinski in this regard in the following terms:

"Should the outcome of Ms Parlinska's trial be that she is extradited, she has expressed the view that she would not be settled with either or both Kacpur and Jakub remaining in the care of Mr Kielpsinki. She does not believe that he would be able to provide a safe and stable home environment, nor would he be able to meet the needs of both children. Ms Parlinska has expressed concern for Jakub, should he remain in the care of Mr Kielpinski, reporting that she feels he treats him differently to Kacpur, which Jakub has allegedly reported to his mother. [Mr Kielpinski is not Jakub's biological father] Ms Parlinska has also commented about the amount of alcohol Mr Kielpinski consumes and how he behaves towards the children when under the influence of alcohol. …"

I rather think that the latest post-decision material to which I have referred supports her concerns.

19. Ms Gunter in her latest report of 30 November 2016 adds that she is not aware of any other persons residing in the UK who would be able to provide care to the boys should the Appellant be extradited. No doubt as Mr Seifert contends if there is no-one in the UK to take care of the children social services will have to step in. However despite my order that the local authority should give an update as to who is to have the care of the children in the UK in the event of the Appellant's extradition (see para 5(i) above) there is no evidence from the local authority as to what they would propose to do in the circumstances, and whether the boys will be kept together or not.
20. The DJ noted in the Decision (at page 4) that the Appellant has no family that can care for the children in Poland. That this is so is confirmed by the latest statements recently provided by the Appellant and her mother and two brothers.
21. I am not satisfied that the DJ's decision was wrong on the evidence then before him. However, I am persuaded that there has, since the Decision, been a material change of circumstances in relation to a critical issue. The fresh evidence has led me to conclude that the Appellant is now the sole carer of the children, whereas previously she was not (see para 2 of Decision, set out at para 8 above). For the two young children to have to go into care (and possibly be separated from each other) would in my view be disproportionate. I consider the fresh evidence to be decisive and that if it had been before the DJ it would have led him to decide this case differently. In my view this is one of those very rare cases where the interests of the children are such that I should order the discharge of the Appellant.
22. For the reasons I have given this appeal succeeds.