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
		08/11/2017

Mr Justice Dingemans:

1. This is the hearing of an appeal against the judgment of District Judge Gareth Branston dated 9^th March 2017 ordering the extradition of the Appellant to Poland pursuant to a conviction warrant. The Appellant contended that extradition should not be ordered, relying on section 21 of the 2003 Act because he said such an extradition would infringe his rights and the rights of his children protected by article 8 of the European Convention on Human Rights ("ECHR").

Evidence

2. I have set out below the relevant facts from the judgment of the District Judge. The District Judge had before him: a statement from PC Amy Laws; a proof of evidence adopted by the Appellant who gave evidence; a social work assessment from Norfolk County Council, carried out pursuant to section 7 of the Children Act 1989, dated 22^nd February 2017; and a psychiatric report from Dr Meena Naguib, Consultant Psychiatrist, dated 23^rd February 2017.
3. There was further evidence which was adduced at the hearing before me which I address below.

Relevant facts

4. It is not necessary for the purposes of this judgment to give names for the children or their mother, who does not share the same name as the Appellant, and I have not done so. The Appellant was born on 2^nd July 1981 and he is now aged 36 years. The warrant relates to convictions for 19 offences committed between 17^th September 2002 and 19^th August 2003. At that time the Appellant was 21 and 22 years old.
5. The evidence shows that the Appellant had suffered an injury to his leg when 18 years old meaning that he could not complete a course but he then started a carpentry course. At some stage he had been evicted from his family home by his father after a row, and his family stopped speaking to him. The Appellant had been given some land by his paternal grandfather, on which there was a small timber home in which he lived after leaving the family home, but he was finishing his studies and struggled financially. The Appellant then started committing his offences.
6. The offences were 8 burglaries and attempted burglaries (mostly of commercial properties); 10 thefts from vehicles which were damaged; and cultivation of 4 cannabis plants. Mr Hawkes has calculated the value of the goods stolen at just under £4,000 (rather than the £5,000 taken by the District Judge) but the exact value is not relevant. This is because the assessment of seriousness is for the Courts of the requesting state, although as Mr Hawkes noted the assessment of the seriousness of the offences by the Polish Courts had taken place in 2004 and 2005, as appears below. It appears from Dr Naguib's report that the Appellant reported that he was committing these offences in part to raise funds for his girlfriend (and now the mother of his children who I will refer to as the mother) to fund a child that the mother had from a previous relationship, and to support the mother's drug and drink habit. As a matter of fairness to the mother I should record that neither the District Judge nor I heard evidence from the mother.
7. In August 2003 the Appellant was arrested. By this time the mother was pregnant and the Appellant's son was born in May 2004. (The Appellant's son is now 13 years old, and was aged 12 years at the time of the hearing before the District Judge).
8. A hearing relating to the offences committed by the Appellant took place in Poland on 17^th September 2004. The Appellant accepted his guilt and sentence was passed on 22^nd September 2004. The appellant was sentenced to 2 years 8 months. He was ordered to pay compensation. The Appellant appealed the verdict, but the sentence was upheld by the Circuit Court on 10^th February 2005.
9. On 25^th May 2005 (when he was nearly 24 years old) the Appellant was imprisoned. After he had been imprisoned, he was given a 5 day pass to enable him to sell property. It appears that the Appellant was going to sell the land to support the mother and their son. At the expiry of his pass, the Appellant did not return to prison. In the social work assessment report at page 5 the Appellant was recorded as saying that he was helped to escape by police officers and described it all as corrupt. The Appellant did not say this in his proof of evidence (or the updated proof of evidence) and it does not seem to me to take the relevant analysis of the case any further.
10. The Appellant travelled to the UK with the mother and their son. The Appellant settled in London and found work. It is common ground that in these circumstances the Appellant was a fugitive.
11. On 2^nd January 2006 the District Court in Poland ordered that the Appellant be arrested, under a warrant issued on 3^rd January 2006. Further information dated 12^th January 2017 stated that there was a request for a EAW to be issued but there is nothing to suggest that the EAW was in fact issued. The further information noted that every effort had been made to trace the Appellant in Poland but, as appears from the facts set out above, the Appellant was not in Poland to be found.
12. In the UK the Appellant and the mother had a daughter, who was born in June 2006. (She is now 11 years old, and was aged 10 years at the time of the hearing before the District Judge).
13. The Appellant has been in full-time employment in the UK. He said that his relationship with the mother began to deteriorate in 2009. The Appellant believed that the mother was drinking, taking drugs and having an affair. The Appellant and the mother separated in 2015, but the Appellant said that he stayed on in the house for the sake of the children.
14. The Appellant then left the home, leaving the children with their mother, but he remained very involved in their lives. The mother and children then lost their accommodation and moved to other accommodation where the children's possessions were stolen. This caused obvious upset to the children.
15. In March 2016 the Applicant had rented property in Norfolk, and the children then came to live with him and transferred schools from London. In September 2016 a domestic incident had occurred with the mother and her new partner. In December 2016 the Appellant had contacted the local authority for advice about housing. The Appellant reported in these discussions that the mother had issues with drugs and alcohol.
16. In June 2016 the District Headquarters in Zywiec notified the District Court in Poland that the Appellant might be in the United Kingdom. On 13^th July 2016 the District Court asked the Circuit Court to issue an EAW. The EAW was issued on 3^rd November 2016 by the judicial authority. It was certified by the National Crime Agency on 21^st November 2016. On 13^th December 2016 the Appellant was arrested and taken to Westminster Magistrates' Court. Mr Hawkes noted the apparent speed with which the Appellant was located after the issue of this EAW, and contended that an EAW could not have been issued in 2006.
17. As the Appellant had been arrested, the children were cared for by the babysitter who had looked after them when the Appellant worked. It seems that no one was able to contact the mother. The social services for Norfolk County Council were contacted.
18. The social work assessment was produced on 22^nd February 2017, shortly before the hearing before the District Judge. This assessment included detailed discussions with the children set out in the relevant box under Child's Development Needs. I have not set out the details of the report because it contains detailed information about the children and their mother. However it is apparent from the assessment that the needs of both children are being met by the Appellant. This is an important matter to be considered because it is apparent that if the Appellant is extradited he will not be around for a period of 2 years and 8 months to meet the needs of the children.
19. Both children expressed negative views about their mother and did not want to live with her. The son said that if the Appellant were extradited he would rather be with a foster family because he thought that they would make sure he was safe. The son's ability to understand some Polish and speak a little was identified, as was his preference for life outside London. It was noted that the children had not had contact with wider members of the family. The children reported that the mother used to drink and shout at them, and had lied to them. The possibility of moving to Poland was discussed, both children were reported to be daunted by this possibility but were not against it.
20. The assessment recorded the efforts to involve the mother with the children. It was reported that the daughter was pleased that the mother (albeit with the help of social services) was taking an interest in her life, although the son was described as being "indifferent around this". It was noted that work needed to be done to rebuild the relationship between the children and their mother.
21. The assessment report also contained a detailed assessment of parenting capacity for both the Appellant and the mother. The Appellant's past experiences were reported to be very concerning, but it was recorded that there were no worries or concerns about the care being provided to the children. The assessment noted that "it is evident that she does love her children" but the mother's weakness in parenting were set out in detail in the report. I should as a matter of fairness to the mother note that the writers of the assessment had not seen evidence of drink or drug abuse by the mother, but both the children and the Appellant had reported drinking, and the Appellant had reported the mother's use of drugs. Other weaknesses were set out in the report, and I have noted these weaknesses and have them fully in mind, but in circumstances where the mother has not given evidence or been represented before me it is not necessary to set them out in this judgment. The mother reported that some of the difficulties she had had with engagement was because of her concern about how the Appellant would be with her (I should as a matter of fairness to the Appellant record that there was nothing to suggest he had acted inappropriately) and it was noted that some of the mother's actions (making recordings) might suggest concerns on her part about the Appellant's parenting (but again there was no evidence to show this). The mother was reported to be very emotional and lacked insight about how this was going to affect the children.
22. It was apparent from the report that both the Appellant and mother have negative views about each other and struggled to be in the same room as each other. It was recorded that the Appellant talked openly about his negative views of the mother in front of the children. It might be noted that while the Appellant's negative views about the mother represent his honest assessment of her parenting abilities, the expression of such views to the children is unlikely to assist to develop a proper relationship with the mother.
23. The report noted that if the Appellant was not extradited there might not need to be further involvement from the children's services, but if the Appellant was extradited the children would need to live with their mother, and would require support and assistance from children's services as it would require a period of adjustment and rebuilding their trust in their mother. In the manager's comments it was recorded that should the Appellant be extradited "children's services position will be that the children will return into the care of their mother. Contact between the children and their mother is taken place, which needs to continue to be promoted … it is important that children are supported emotionally should they go to live with their mother …". It was noted that the family's needs fell under level 3 of the Norfolk Threshold Guide and that the family's needs continued to be met through the child in need plan.
24. The report from Dr Naguib was based on an interview with the Appellant and the children. Dr Naguib reported negative views about the mother expressed by the children (including a specific issue about assault addressed below) and made comments about the effect on the children of separation from the Appellant, in part based on her assessment of the lack of suitability of the mother to provide for the children.

The judgment in the Magistrates Court

25. District Judge Gareth Branston set out the relevant facts. The judgment contained a detailed analysis of the social work assessment report in paragraphs 59 to 68, and addressed the report from Dr Naguib in paragraphs 69 to 73, accepting some of the observations made by Dr Naguib which were essentially common sense but noting that the Court did not consider Dr Naguib to be properly equipped to make recommendations about where the children should go because Dr Naguib had never met the mother. The District Judge recorded that he placed greater weight on the professional opinions of the social workers "who have been able to approach the situation with a full picture".
26. The District Judge set out in detail the factors in favour of extradition, and the factors against extradition. These factors included: the constant and weighty public interest in extradition and in ensuring that people convicted of their crimes served their sentence; the fact that the Appellant still had almost all of his sentence to serve; the fact that the Appellant's children would not be forced to go into care and that they could go to the care of their mother, and professionals from Norfolk Children's services had determined that it was safe for the children; the care provided by the mother would be supplemented by Norfolk social services; and the state was capable of providing for families left in financial or other need.
27. These factors against extradition included: the Appellant's family life in the UK for 12 years; the fact that he had turned his life around; the fact that the decision engaged the rights of the children and that their welfare was a primary concern; one of the children had not even been born in 2005; separation would cause emotional harm to the Appellant and his children; the Appellant was the primary carer for the children; both children had expressed a desire not to live with the mother; and both children had suffered some harm while living alone with their mother.
28. The District Judge concluded that he was satisfied that the public interest in extradition outweighed the interference with the article 8 ECHR rights of the Appellant and his children.

Further evidence

29. There was fresh evidence on the appeal in the form of further reports from Norfolk County Council and an updated proof of evidence from the Appellant commenting on the first updating report from the Council. There was no objection to me considering this material, although Ms Bostock submitted that it does not affect the outcome of the case.
30. Norfolk County Council produced short further reports dated 25^th May 2017 and 3^rd October 2017. The report dated 25^th May 2017 showed that both children wanted to stay with their father and did not have good memories of the time with their mother. The problematic nature of the contact between the social workers and the mother was emphasised. The mother had managed to attend 7 out of 11 contact sessions, and comments were made about how well and badly these had gone. The mother had not managed to arrange accommodation in Norfolk despite promises to do so, and had failed to take advantage of specialist housing support services. There were "real concerns regarding [the mother's] commitment to prioritise the children's needs". The extradition of the Appellant would mean the loss of their father and be detrimental to their health and wellbeing. It was noted that the case would be presented to the manager to discuss further support and contingency planning in the event that the Appellant was extradited.
31. In his further proof of evidence the Appellant set out further concerns about the mother, emphasising her lack of suitability to care for the children and her failure to contact the children for long periods of time last year. The Appellant set out his concerns that he would have no contact with the children while he was serving his prison sentence.
32. In the report dated 3^rd October 2017 it was noted there had been very little change in the children's views of their mother because they feel repeatedly let down because of missed contact sessions. Problems with engagement between the mother and the social workers was again highlighted. The report stated "… Children's services are clear that children should be within their family and therefore will continue to assist both [the mother] with funding suitable accommodation for her and the children and will continue to offer support and assistance to her and the children during any transition period and beyond". The report emphasised again that the children would rather be in the care of their father, and the quality of his care for the children was emphasised. The report concluded noting that the mother "needs to evidence that she can make and sustain the children's basic needs for stable accommodation and emotional security. If she was unable to achieve this then Children's services would be seeking for the children to be in the care of their extended family members, including those in Poland". It was recorded that the Appellant had been told of the plans to support the mother but had said that "he would rather the children be in the care of his sister's in Poland".

Issues on appeal

33. Permission to appeal was granted by Sir Wyn Williams, sitting as a Judge of the High Court, who recorded that the Appellant might have a significant hurdle but noted that there were genuine and significant concerns about the welfare of the children justifying the grant of permission to appeal.
34. The Appellant submits that the District Judge failed to take sufficient account of the effect that the Appellant's extradition would have on his two children, now aged 13 and 11 years, who are currently living with the Appellant and who might have to return to their mother, or stay with extended family in Poland, or go into foster care. This was particularly so in circumstances where the best interests of the children are a primary concern. The Respondent submits that the District Judge carried out a proper balancing exercise and came to the right conclusion that the public interest in the Appellant's extradition justified the interference with the article 8 ECHR rights of the Appellant and the children.

Legal principles

35. The legal principles were common ground before me. The Appellant is not entitled to rely on the passage of time pursuant to section 14 of the 2003 Act. This was because the Appellant had become a fugitive when he had failed to return to prison after the expiry of his 5 day pass to enable him to sell property.
36. Section 21 of the 2003 Act requires the Court to determine whether the extradition of Mr Bialon would be compatible with his rights under the ECHR. Article 8 of the ECHR provides a right to a private and family life, which is qualified. The relevant principles governing the approach to this issue have been established, see Norris v USA [2010] UKSC 9, [2010] 2 AC 487; H(H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, [2013] 1 AC 338; and Poland v Celinksi [2015] EWHC 1274 (Admin); [2016] 1 WLR 551.
37. The question is whether interference with the article 8 right is outweighed by the public interest in extradition. There is no test of exceptionality. In the balance there is a constant and weighty public interest in extradition, people should have their trials, and the UK should honour treaty obligations. The best interests of the children are a primary consideration, and Courts need to obtain the information necessary to make the necessary determinations relating to children. Although section 14 of the Extradition Act was not relevant, delay since commission of the crime may diminish weight to be attached to the public interest and increase the impact on private life. On appeal the question for me is whether the District Judge made the wrong decision.

Dr Naguib's report

38. There was a discussion about the status of Dr Naguib's report before me. It was hampered by the fact that neither Mr Hawkes nor his instructing solicitors had appeared below and the point arose in the hearing. I therefore directed the parties to provide further information about the circumstances in which Dr Naguib's report had been admitted and I am grateful for the further information which was provided after the hearing.
39. It appears from the further submissions that Dr Naguib's report had been obtained late in the proceedings in Westminster Magistrates' Court. No provision had been made for expert evidence in earlier directions. The report from Dr Naguib was dated 23^rd February 2017 and provided to the CPS. The hearing took place on 9^th March 2017. It appears that the District Judge asked why a consultant psychiatrist had been engaged when there was no issue about the Appellant's mental health, there was a suggestion from counsel then appearing for the Appellant that he had not asked for the report. It appears from emails that counsel then appearing for the Appellant had approved the disclosure of the report.
40. It does not appear that further submissions were made before the District Judge about the report but that it was admitted without being formally agreed. As already noted the District Judge referred to the report at paragraphs 69 to 73 of the judgment concluding that Dr Naguib's report was not of great assistance to the District Judge in determining the case because the psychiatrist was relying only on material from the Appellant and the children, and had not seen the mother. The District Judge did accept some of the observations made by the psychiatrist about the detrimental effect that separation from the father would have. The District Judge was able to say from his experience of sitting in the Family Courts that comments about the rarity of joint foster placements in the report was not accurate, although he did not know whether that had come from Dr Naguib or the solicitors.
41. In these circumstances it is apparent that the report was evidence before the District Judge. Mr Hawkes is entitled to refer to and rely on the report in support of his submissions on appeal. In the written submissions after the hearing the Appellant's solicitors did adduce a letter from Dr Naguib about her experience and qualifications enabling her to produce the report and comment on the Appellant's children. It was said that "this is not evidence per se, but rather a statement of fact as to … qualifications". In my judgment although the letter is about qualifications, it does amount to fresh evidence. I have looked at it to see whether it would alter my conclusions one way or the other, which it has not done.
42. The reason for considering the status of Dr Naguib's report is that Mr Hawkes placed very considerable reliance on a passage in the report in which Dr Naguib referred to "alleged physical attacks on the children" (under "Comments on [Mother]'s behaviour") and then set out reports from the daughter that her mother had scratched her and reports from the son that his mother had assaulted him physically and verbally, although no details of that assault are given. Mr Hawkes submitted that this made it plain that the mother was unfit to look after the children, meaning that the Appellant's extradition should be refused. It does not appear that the submission was made in this way to the District Judge but it is open to Mr Hawkes to make that submission to me on the basis of the information set out in the report.
43. The statements from the children to Dr Naguib about the scratch and physical assault are recorded in the report, and are therefore admissible hearsay statements. However the weight to be attached to these statements still needs to be considered, and it is therefore necessary to consider relevant factors. These factors include the circumstances in which the statements were made, how reliable the makers appear to be, the consistency with other statements, and whether oral evidence could have been given. These statements were made by the children in the presence of their father in circumstances where the children are aware of the possibility of their father's extradition, which they do not want, and the possibility that they will be returned to their mother, which they do not want. The comments go a bit further than the details recorded by the social workers in their assessment about the mother shouting at the children, and social workers are skilled at extracting information from children about the parenting that they have received, suggesting that if this had occurred it would have been said to the social workers. On the other hand the statements were made to a consultant psychiatrist who does not dismiss them, albeit they are referred to as allegations. In my judgment these statements from the children are part of the general evidence of the case, and they support concerns about the parenting skills of the mother. It is not apparent that the statements have been reported to social services, but social services will need to make their own assessment of the statements and their effect so that they can continue to ensure the safety of the children. There is no evidence before me to show that if the statements are true and reliable they would be a bar to the mother becoming the primary carer for the children, but it will be for the social services to determine these matters.
44. However, most importantly, in my judgment the statements by the children do not undermine the assessment made by District Judge Gareth Branston of Dr Naguib's report, and it is not fair to say that the District Judge wrongly discounted Dr Naguib's evidence. The District Judge specifically noted that "both children have suffered some harm during the time they were living alone with their mother", see paragraph 108 of the judgment. The District Judge noted that Dr Naguib had not interviewed the mother, whereas the social workers had done so for the purposes of their assessment. The social workers had carried out an in depth analysis of the respective parenting skills of the Appellant and the mother, and noted weaknesses in the mother's parenting. In those circumstances the District Judge was right to place reliance on the views of those social workers and to prefer the assessment by the social workers to the assessment made by Dr Naguib.
45. Mr Hawkes, in further written submissions on Dr Naguib's report, said that the children would not be safe with their mother. I do not accept that submission. There are obvious causes for concern about whether the mother's care of the children will be adequate and sufficient, but there is nothing to suggest a danger of injury and the social workers have proper powers to ensure the safety of the children.

District Judge did not overlook relevant evidence and was entitled to come to the conclusion that he did

46. Mr Hawkes made various criticisms of the judgment below. In my judgment the District Judge did not downplay the strong concerns of the social services assessment, and there was a fair summary of the relevant points in the judgment. The judge did not fail to take account of the children's wishes, because he specifically recorded them in his judgment. The failure to give effect to those wishes does not mean that they have not been properly considered. It is apparent that the District Judge had well in mind the effect of separation of the children from the Appellant. The District Judge also had well in mind the facts that the Appellant was providing good care to the children, and that the Appellant's extradition would be a "significant change in circumstances for these two children which will inevitably cause them disruption and distress."
47. It is not correct to say the District Judge failed to take account of delay. The District Judge expressly noted that the significant period of time between the offences and these proceedings, rightly identifying that this might diminish the public interest in extradition and had increased the impact on the Appellant's private and family life. The District Judge was entitled to draw an analogy with the imprisonment of persons in this jurisdiction in terms of the children losing contact with the Appellant, but it is settled in any event that a sentencing court in this jurisdiction will, among other matters, have regard to the impact of imprisonment of a carer on dependent children. It does appear that the Appellant had confused the issue of deportation and extradition, and the District Judge cannot fairly be criticised for identifying that. The District Judge did not apply a test of exceptionality, because he had taken the factors for and against extradition, balanced them and had come to a conclusion that the extradition of the Appellant would not involve a disproportionate interference with article 8 rights, as appears from paragraph 111 of the judgment.
48. Mr Hawkes submitted that the very fact that social services were involved pursuant to the provisions of the Children Act 1989, and that the family had been assessed as requiring assistance at level 3 of the Norfolk Threshold Guide, demonstrated that the mother was not fit to care for the children because there was a risk of significant impairment to the children's development and psychological harm if the Appellant is to be extradited. The involvement of social services was necessary given the fact that the Appellant was arrested, the children were without care, and the mother could not be contacted. The continued involvement of social services is required because the Appellant, as primary carer, is under threat of removal and if that happens the mother will require very considerable support to enable her to care for the children. The continued involvement of social services is required to ensure that a risk of harm to the children does not materialise.
49. I do not accept Mr Hawkes' characterisation of the updating reports from Norfolk County Council as proving that the mother is unfit and unsafe to care for the children. Equally I do not accept Ms Bostock's characterisation of the same evidence as showing that all is going very well and better than predicted. A proper assessment of this further evidence shows that the weaknesses in the mother's parenting, the children's wishes to stay with their father, and the problems of obtaining accommodation for the children with the mother, all remain. However the social services remain on hand to ensure the safety of the children. It is obviously not possible to predict whether the children will be put into the care of the mother, which is not the current wish of the children but is what the social workers are hoping to achieve. The report of 3^rd October 2017 made it clear that the social workers considered that the children should stay with their mother and would continue to assist in finding suitable accommodation for her and the children and would continue to offer support and assistance to her and the children. There is a possibility that the children will go to extended family in Poland, which is the apparent wish of the Appellant in the event of his extradition. This was a prospect reported to be daunting for the children, who do not have Polish and who have either no memory of life there or who have not lived there. The evidence also suggests that there is a possibility that the children might be placed with foster carers, which is the apparent outcome desired by the children if extradition is ordered.
50. In my judgment given: (1) the animosity between the Appellant and the mother; (2) the fact that the Appellant has made negative comments about the mother in front of the children; and (3) the unfortunate effect of these proceedings; the full picture of the mother's ability to care for the children will only emerge once the Appellant has been extradited. What is clear on the evidence is that Norfolk County Council children's services will remain engaged to ensure the safety of the children, notwithstanding the obvious pain that separation from the Appellant will cause them and him.
51. The interests of children have been a primary factor in this case and appeal, as is apparent from some of the detail set out in the judgment. However, after careful consideration of the submissions and materials I have not been persuaded that the judgment of District Judge Gareth Branston was wrong, notwithstanding the effect of the extradition on the children and the delay which has occurred since the commission of the offences. There is nothing in the further reports from the Norfolk County Council or the statement from the Appellant that shows that the extradition of the Appellant would amount to an impermissible interference with the article 8 rights engaged by this case.

Conclusion

52. For the detailed reasons set out above the appeal is dismissed.