AC v A Swedish Judicial Authority

On an appeal against an extradition order, fresh evidence may be admitted where it was unavailable at the original hearing, directly concerns a material change of circumstances, and bears on the proportionality of extradition under Extradition Act 2003, s 21A and article 8. The court must conduct the proportionality assessment afresh. The best interests and welfare of dependent children are highly significant. Where the care arrangement relied on at first instance has ceased to be available, and extradition would separate the children from their sole carer and cause serious psychological, educational and family-life harm, the balance may require the extradition order to be quashed.

The applicant appealed under s 26 of the Extradition Act 2003 against a District Judge’s order for her extradition to Sweden for prosecution concerning the removal and retention of her two children. The allegation concerning a forged passport application was no longer pursued.

The sole original ground was that extradition would be a disproportionate interference with the applicant’s and her children’s article 8 rights. After the extradition hearing, fresh evidence showed that the maternal aunt could no longer care for the children in the United Kingdom. The central issue was whether that change of circumstances required the court to admit the evidence and reconsider the proportionality of extradition.

1. Fresh evidence. The documents were admissible because none was available at the extradition hearing and they directly concerned a material change of circumstances and the children’s best interests.
2. Reconsideration. In light of the fresh evidence, the court had to conduct the article 8 proportionality balancing exercise afresh. The District Judge’s decision had depended heavily on the maternal aunt being able and willing to care for the children in the United Kingdom.
3. Material circumstances. The aunt was no longer available. The evidence established that moving the children to Mongolia would uproot them from a stable environment during important educational years and was likely to cause significant psychological and educational harm. There was no realistic prospect of their grandmother travelling to the United Kingdom to provide sole care, and local-authority care was not considered appropriate.
4. Other alternatives. It was not appropriate for the children to accompany the applicant to Sweden. They did not wish to have contact with their father, there was no other identified carer in Sweden, and relocation there would be disruptive.
5. Balancing exercise. The public interest in extradition, the seriousness of defying a custody order and the treaty obligations remained relevant. However, the fresh evidence substantially increased the interference with the children’s family life and welfare. Their separation from their mother, combined with relocation to Mongolia, was likely to have a serious adverse effect.
6. The court concluded that, had the fresh evidence been before the District Judge, he would have reached a different conclusion and would not have ordered extradition. Permission to appeal was granted, the appeal was allowed, and the extradition order was quashed under ss 27(1) and 27(5) of the Extradition Act 2003.

• High Court (Administrative Court): Permission to appeal granted; appeal allowed; extradition order quashed under ss 27(1) and 27(5) of the Extradition Act 2003.
• District Judge: On 14 January 2019, ordered extradition to Sweden and concluded that extradition was proportionate under s 21A of the Extradition Act 2003.