QUEEN'S BENCH DIVISION
B e f o r e :
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|CIRCUIT COURT IN CZESTOCHOWA, POLAND||Respondent|
MS A. BOSTOCK (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the respondent.
Crown Copyright ©
MR JUSTICE HOLMAN:
"(1) On an appeal under section 26 the High Court may—
(a)allow the appeal;
(b)dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(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 a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition."
"[Dr Aslan] was asked his opinion with regard to the proposals that the children could be cared for by the paternal grandparents in Poland. His opinion was that this arrangement would minimise the detrimental effect upon the children. It would be a better managed arrangement but in his opinion the consequences for the children would be the same. He noted that last time the twins were in their care, they could not cope and they brought them back to the UK. They did not have R at that point. He believed the children would still go through trauma. One of the twins, L, is exhibiting behavioural problems which is corroborated by the letter from the school. L has anxiety problems. He stated that the effect on the children of the requested person's extradition would be sadness, distress, aggression and anger. The effects would be worse for L as he did not observe any behavioural issues with A or R. R has a strong attachment to the requested person. He agreed the children were resilient and have adapted fairly well. His opinion was that if the requested person was extradited, maintaining contact while she was in custody would be important ..."
"In cross-examination, [Dr Aslan] agreed that the twins had been separated from the requested person when she was serving her prison sentence in the United Kingdom, they were resilient. However, further trauma caused by separation could be damaging ... He agreed it would be beneficial for R to be able to stay with his mother in prison until he was three as adjustment would be easier after that age. He conceded that his opinion upon the impact of the children was a prediction. He agreed a routine of care with paternal grandparents would minimise the risks of separation from the requested person ..."
"The enormous attachment of the children to their mother means that they might be plummeted into what could be paralysing grief ... leading to multiple future problems."
"[The paternal grandparents] had confirmed that they would look after the children if their parents would be unable to do so and the children were at risk of being placed with foster carers. This confirmation to the local authority is despite the reservations expressed within their own statements. I find that the paternal grandparents are deemed suitable carers for the children in Poland following the local authority assessment, and despite their own reservations, they have agreed to that course of action with the local authority if the requested person is removed."
"I find that the local authority have satisfied themselves that this is the most appropriate away of ensuring the children's welfare is given paramount consideration and risk of serious harm as a result of separation from their mother as primary carer is reduced."
"I find therefore there are arrangements for R to be placed with his mother in pre-trial detention and thereafter his continued care will be with his paternal grandparents and his siblings."
"I recognise the decision to extradite will expose the requested person's children to further distress, anxiety and emotional harm. However, the effect on the children is mitigated by the fact that following a full assessment by social services, the paternal grandparents have agreed to look after the children in Poland."
"I am satisfied that with the arrangements and support available [viz. living with the paternal grandparents] separation from their mother will not cause long-term emotional harm and the children will regain stability, trust and security with their family."
"The paternal grandparents are described as elderly (at 62 and 64 years old) and are said to be unable to care for three young children."
"2 August 2017 - Alicia Bielewicz - Polish social worker at Wandsworth Children's Services telephoned [the paternal grandparents] in Poland to ascertain their position on looking after their grandchildren. [The grandfather] confirmed that he is aware of the current situation that the children's parents were in and advised that he and his wife live in Poland and had looked after the children from February to April 2016. He said the children were distressed and cried a lot as they missed their parents. He confirmed that he and his wife would look after the children if their parents would be unable to do so, and if the children are at risk of being placed in foster care with strangers.
The local authority feel this option is in the best interests of the children as being placed in foster care will cause further distress and the matter of contact with their birth family will become complicated and confusing for them. Also, if the local authority had to take the children into care it would mean that the local authority would want to complete an assessment of the paternal grandparents either in person or via Skype to ensure that the children would be looked after without any risk to them as the children would be accommodated under section 20 Children Act 1989."
"I [the paternal grandmother] born on 2 January 1955 [viz. now being 64] ... here represent that due to my ill-health I am unable to provide my grandsons A, L and R with proper care and the loving environment they need with relation to the lengthy imprisonment of their father ... and the possible extradition and imprisonment of their mother ... despite our prior willingness to do so and the declaration made by my husband. I am suffering from depression; this condition makes it impossible for me to create an environment conducive to the children's wellbeing and proper development, which I deeply regret.
I live in Poland together with my husband, who - due to severe back, muscular and joint pains - is also unable to do that. Both retired, we have now temporarily moved to the seaside with the aim of improving our health while the children, being of school age, need to reside at a permanent address, which we are unable to ensure. Moreover, the severe problems from which the twins suffer as a result of the traumas through which they have gone will be most likely aggravated by yet another painful separation from their mother. We are concerned that the youngest boy, R, will be equally devastated ...
After careful consideration, neither myself nor my husband see any possibility for us to face up to the current difficulties and the future challenges which taking care of our grandchildren in this hardest period of their life would entail. Assuming such tremendous responsibility for them exceeds our capabilities."
"I fully agree with my wife's statement. Due to our age and health problems, we are unable to take care of our grandsons."
"The additional information from the judicial authority states that they are ready to proceed with a joint trial and the requested person's husband is already now in custody in Poland. There is no significant delay and no evidence that the requested person and her husband cannot receive a fair trial in Poland."
"The prosecution should consider a much more thorough selection of evidence, in particular with regards to evidence which the prosecution does not request for the court to consider directly during the trial. Compiling all of the evidence gathered so far into several dozen volumes of files and over 160 volumes of additional documents, without any selection and synthesis of this material in the indictment for the court, cannot be considered as the correct and exemplary way of concluding preliminary investigations ..."
"Following the assessment, I am of the opinion that L and A will both likely suffer devastating harm with longer-term consequences, in the event of separation from their mother. I am also of the view that R would suffer severe harm. This opinion is formed on the basis that the three boys, especially the twins, have clearly suffered significant harm already caused by multiple previous separations. L is experiencing attachment difficulties with associated aggression and separation anxiety, and will almost certainly respond extremely badly to another separation, irrespective of the support or care arrangements that are put in place. A is showing signs of social anxiety and concentration problems, and will also respond very badly in response to [his mother's] extradition. Although R is developing relatively well at present, due to his age, he is particularly sensitive to separations from a primary carer, and I would expect R to experience severe harm at least, with enduring developmental consequences. These expected consequences would apply even if the event of a relatively short separation of a few months, especially for the twins."
"I have considered the above factors and concluded that the factors supporting extradition outweigh the factors mitigating against extradition. This is primarily based on the public interest and the seriousness of the alleged offences. I recognise the decision to extradite will expose the requested person's children to further distress, anxiety and emotional harm. However, the effect on the children is mitigated by the fact that following a full assessment by social services, the paternal grandparents have agreed to look after children in Poland ..."
"I conclude in considering these factors that the combination of the strong public interest in this country complying with its international treaty obligations in respect of extradition and the constant and weighty public interest in extradition that those accused of crimes should be brought to trial far outweighs the request person's Article 8 rights in this case and that a decision to order her extradition would be a proportionate decision. I reject the Article 8 challenge."
"The judicial authority are ready to proceed with a joint trial ... there is no significant delay ... "
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** This transcript has been approved by the Judge (subject to Judge's approval) **