AB v Regional Court In Poznan, Poland

In an extradition case engaging Article 8, the best interests of affected children are a primary consideration, but they do not automatically outweigh the public interest in giving effect to extradition arrangements. The court must assess all the circumstances, including the seriousness of the offence, the likely domestic sentence, the practical arrangements for the children, and the evidence of harm caused by separation. Extradition will be disproportionate where the interference with family life is not necessary in a democratic society. The assessment is fact-sensitive, and comparisons with other cases or a mechanical scorecard of similarities are generally unhelpful.

The claimant appealed against an extradition order made by a District Judge at Westminster Magistrates’ Court. The order followed a European Arrest Warrant issued by the Regional Court in Poznan concerning convictions for misappropriating money paid by customers to the claimant’s employer. The claimant relied solely on the impact of extradition on her Article 8 rights and those of her two young children.

The District Judge accepted that extradition would cause hardship but considered that the children could be cared for by their father or placed with the claimant in a Polish mother-and-child prison unit. Before the appeal was determined, further evidence showed domestic violence, continuing alcohol misuse and safeguarding concerns regarding the proposed care arrangements. The central issue was whether extradition remained a proportionate interference with the family lives of the claimant and her children.

1. The appeal was allowed and the claimant was discharged. The court applied the principles stated by the Supreme Court in H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338. The children’s best interests were a primary consideration, but parental responsibilities were not a trump card and the public interest in implementing extradition arrangements remained substantial.

2. The assessment required consideration of all the circumstances. Authorities based on different facts were unlikely to provide useful guidance, and a scorecard of similarities and differences was not ordinarily a fruitful exercise.

3. The offences were serious and involved a breach of trust, but they were not in the category of offending where extradition would ordinarily be justified despite the inevitable impact on children. The available domestic sentencing guidance suggested that the equivalent offending might attract a community order or a short custodial sentence. It could not be assumed that an immediate custodial sentence would have been imposed in England.

4. The court could not fairly attribute the activation of the suspended Polish sentence entirely to the claimant without knowing whether the Polish court had considered whether any failure to pay compensation was wilful. The absence of any prosecutorial discretion not to seek an arrest warrant was also relevant to the proportionality assessment, consistently with Matuszewski v Regional Court in Radom, Poland [2014] EWHC 357 (Admin).

5. The evidence established that the claimant was effectively the sole carer. The proposed alternatives had become materially less realistic because of further domestic violence, the father’s continuing alcohol misuse, the deterioration of his relationship with one child, the local authority’s safeguarding concerns and the likely separation of the siblings. Taking the children into care was not a proportionate solution for offending of this seriousness.

6. In the updated circumstances, the interference with the family lives of the claimant and her children would not be necessary in a democratic society. Extradition would therefore violate their Article 8 rights.

• High Court (Queen’s Bench Division): The appeal against the District Judge’s extradition order was allowed and the claimant was discharged.
• Westminster Magistrates’ Court: District Judge John Zani ordered extradition on 15 August 2013 under a European Arrest Warrant.