HH v Deputy Prosecutor of the Italian Republic, Genoa

This appeal concerns how article 8 rights of children should be treated in extradition proceedings. The court considered two linked appeals under the Extradition Act 2003 involving parents whose extradition to Italy and Poland was sought by way of European Arrest Warrants. The Administrative Court certified the question whether and how the Supreme Court should adjust the approach in [2010] UKSC 9 (Norris) in light of [2011] UKSC 4 (ZH (Tanzania)). The central issues were (i) whether the child’s best interests must be treated as the primary consideration in the article 8 proportionality exercise, and (ii) the practical steps an executing court should take to safeguard children’s interests, including obtaining welfare information and considering alternatives to extradition. The court heard evidence on family reports and psychiatric assessments and addressed the proportionality of extradition orders in the particular facts of each appeal.

1. Disposition: The appeals were allowed in respect of the Polish appellant (F-K) and, in the Italian group, the appeal of the father (PH) and mother (HH) were disposed of differently: the appeal of Mrs F-K was allowed; the appeal of Mrs HH was dismissed; the majority dismissed the appeal of Mr PH while Lady Hale would have allowed it (majority dismissal of PH).
2. Legal principles — children and article 8:
   1. The court must adopt the structured Convention approach: (a) is there interference with private and family life; (b) is the interference in accordance with law and for a legitimate aim; (c) is it necessary in a democratic society — i.e. proportionate. (paras 29–31)
   2. The child’s best interests must be treated as a primary consideration in the article 8 proportionality assessment. They are not necessarily the paramount consideration and may be outweighed by cumulative countervailing factors. The best interests should ordinarily be considered first so as to ensure they are not undervalued. (paras 11–15, 33, 143–146)
   3. Norris v US ([2010] UKSC 9) remains authoritative for extradition: there is a strong and weighty public interest in extradition which will often carry great weight, but the test is proportionality, not an exceptionality hurdle. ZH (Tanzania) ([2011] UKSC 4) reinforces that children’s best interests are a primary consideration and informs how Norris is to be applied where children are involved. The two authorities are to be read together. (paras 2–8, 15–16, 124)
3. Application and procedural guidance:
   1. Where the extradition of a sole or primary carer or both parents is sought, the executing court should obtain information about the children: dependency, likely effect of extradition, alternative care arrangements, availability in the requesting state of mitigatory measures (mother-and-baby units, house arrest, repatriation, serving sentence at home), and whether prosecution at home is possible. The court may refer the matter to local Children’s Services and obtain expert psychological reports where necessary. Children’s wishes should be considered in accordance with their age and maturity. (paras 82–86, 83–85)
   2. Separate legal representation of children will rarely be necessary but may be appropriate in serious cases; evidence or representations may be made via the Official Solicitor or other means. (paras 85–86)
4. Application to the facts:
   1. F-K (Poland): the offences were of limited gravity, delay was substantial, the appellant’s family had established settled lives in the UK with very young children and an incapacitated father; extradition would cause severe harm to the two youngest children; proportionality required allowing surrender to be refused. Appeal allowed. (paras 35–48, 44–48)
   2. HH and PH (Italy): the mother’s extradition was not disproportionate in the light of the gravity of her role and convictions; her appeal was dismissed. The father’s case provoked divided views: Lady Hale would have discharged him because of the exceptional and severe effect on the youngest child and the prospect of mitigation by Italian sentencing/transfer arrangements; the majority concluded that the public interest and gravity of his offending outweighed the article 8 interference and dismissed his appeal, while urging leniency by the Italian authorities where possible. (paras 49–79, 72–79, 93–105)
5. Practical outcomes: courts must carry out a fact-sensitive proportionality assessment, obtain welfare information where necessary, consider mitigation and alternative measures, and explain the balancing of children’s primary interests against the public interest in extradition. The court emphasised cooperation with requesting states about measures that might reduce harm to children, and noted the availability of transfer/repatriation mechanisms as potentially relevant. (paras 82–86, 105)

• Administrative Court (Divisional Court): appeals from the District Judge were heard; reported at [2011] EWHC 1145 (Admin) and [2012] EWHC 25 (Admin).
• Supreme Court: allowed the appeal in respect of F-K and allowed HH’s appeal in part (HH dismissed; PH dismissed by majority) — judgment given 20 June 2012.