HH v Deputy Prosecutor of the Italian Republic, Genoa

The Supreme Court considered the relevance and weight of children’s Article 8 ECHR rights in extradition proceedings under the Extradition Act 2003, in particular the operation of section 21. The Court reiterated that the test is a proportionality assessment: whether the interference with private and family life is justified by the public interest in extradition, and that the public interest in extradition is a constant and weighty consideration but its weight varies with the gravity of the offending and other circumstances (Norris v USA applied).

The Court held that where a child’s rights are engaged the child’s best interests must be treated as a primary consideration in the Article 8 proportionality assessment (ZH (Tanzania) applied). That requires fact-sensitive inquiry into the likely effects of extradition on each child, available mitigation, care arrangements and alternatives such as prosecuting or serving sentence locally, delay, and any relevant domestic or foreign arrangements that might reduce harm. Where the parent is the sole or primary carer or both parents face extradition the potential harm may be such as to outweigh the public interest in extradition in particular cases.

Applying these principles the Court allowed the appeal in F-K (Polish mother) because extradition would cause exceptionally severe harm to her two youngest children and the offences were comparatively minor and delayed. The Court dismissed the appeals of HH and PH (Italian case) as to HH and PH the public interest in extradition, given the gravity and international dimension of the drug offences and other relevant factors, prevailed though the Court emphasised procedural safeguards to assess children's interests.

This appeal addressed how courts should safeguard the Article 8 rights of children in extradition proceedings under the Extradition Act 2003 and whether the Supreme Court’s earlier approach in Norris should be modified in light of ZH (Tanzania). The certified question asked how the children’s interests should be taken into account when Article 8 rights are arguably engaged.

Background and parties:

• Two linked appeals: (1) an Italian case (HH and PH, both British citizens) concerned parents convicted in Italy of serious drug trafficking offences and sentenced in absentia; both parents faced extradition and have three children aged 11, 8 and 3. (2) a Polish case (AF-K / F-K) concerned a Polish mother, mother of five, two of whom were born in the United Kingdom after the family settled here; she faced EAWs for dishonesty offences.

Procedural history: The cases proceeded from decisions of the District Judges and appeals to the Administrative Court ([2011] EWHC 1145 (Admin); [2012] EWHC 25 (Admin)) and were brought to the Supreme Court. The Court heard argument from the parties and interventions from the Official Solicitor, JUSTICE and Coram Children’s Legal Centre.

Issues for decision:

1. How should Article 8 be applied where children’s rights are engaged in extradition cases? In particular, what is the effect of ZH (Tanzania) requiring the best interests of the child to be a primary consideration on the approach taken in Norris?
2. Whether, on the facts, extradition would be compatible with the children’s Article 8 rights (and whether the appellants should be discharged under section 21 of the Extradition Act 2003).

Court’s reasoning:

• The court confirmed the structured Strasbourg approach to Article 8 (establish interference, lawfulness and legitimate aim, then necessity/proportionality). It rejected any bright-line distinction that would treat extradition as a special category diminishing careful Article 8 scrutiny. Norris remains authoritative as to the approach to proportionality in extradition, but ZH requires that, where children are affected, their best interests must be a primary consideration in the balancing exercise.
• The court explained that “primary consideration” does not mean automatically paramount; rather the best interests of the child must be considered first and given substantial weight although countervailing public-interest considerations can outweigh them.
• Practical steps and information needed were identified: the extraditing court should obtain information about dependency, likely harm to each child, alternative care arrangements, mitigation measures in the requesting state (mother-and-baby units, home detention, prison visits), prosecutorial or judicial alternatives (prosecution or serving sentence locally), and the child’s wishes where appropriate. Referral to local children’s services or expert psychological assessment may be necessary in cases where the sole or primary carer or both parents are sought.

Disposition: The Court allowed the appeal in the Polish case (F-K) and refused the appeals in the Italian case as to HH and PH (majority), emphasising the need for careful child-focused inquiries in extradition cases affecting children.

Appeal allowed in part. The Supreme Court confirmed that in extradition proceedings under the Extradition Act 2003 the Article 8 rights of children must be treated as a primary consideration in the proportionality assessment, adopting the structured Strasbourg approach and reconciling Norris with ZH (Tanzania). Applying those principles, the Court allowed the appeal of F-K (Polish mother) because extradition would cause exceptionally severe harm to her youngest children and the offending and delay meant the public interest did not justify that harm; the Court dismissed the appeals of HH and PH (Italian case) because the gravity and international dimension of the drug offences, and other factors, meant the public interest in extradition outweighed the children’s interests on the facts, while reiterating procedural safeguards for assessing children's welfare.

Appeals from the Administrative Court: [2011] EWHC 1145 (Admin) and [2012] EWHC 25 (Admin). The Supreme Court heard appeals in consolidated proceedings and issued this judgment [2012] UKSC 25 resolving the certified question and disposing of the three appellants by allowing the appeal in F-K and dismissing the appeals in respect of HH and PH (majority).