Leszek Radoslaw Herbasz v The Regional Court in Gdansk (Poland)

In an extradition case involving Article 8 ECHR, a court need not order a social-services assessment or adjourn proceedings merely to investigate unsupported assertions about a child and parental care. The court must consider the child’s welfare as a primary consideration, but the evidence must provide a proper and sufficiently realistic basis for assessing the claimed impact of extradition. Fresh evidence will not justify permission to appeal or admission where, even if further facts were established, there is no realistic prospect that the Article 8 balance could bar extradition.

The appellant was wanted for extradition to Poland to serve the balance of a three-year custodial sentence. District Judge Snow ordered extradition on 28 September 2020. Morris J refused permission on the Article 8 ground, and the appellant renewed that application.

The appellant relied on the asserted existence of a young son and his alleged period as the child’s primary carer. He sought an adjournment and a direction under section 7 of the Children Act 1989 for an assessment report. He also sought to adduce a solicitors’ letter said to corroborate allegations concerning the child’s mother. The central issue was whether the evidence made an Article 8 challenge reasonably arguable or warranted further investigation.

1. The application for permission to appeal on the Article 8 ground was refused. The application to adduce the solicitors’ letter and related witness statement as fresh evidence was also refused because the evidence was incapable of being decisive.
2. The child’s Article 8 rights and welfare interests were relevant and welfare was a primary consideration. In principle, the consequences of extradition for a child, including the possible loss of a care arrangement, could be sufficiently serious to outweigh the public interest in extradition.
3. However, the asserted existence of the child and the appellant’s alleged role as primary carer rested on an uncorroborated proof of evidence from a person who had deliberately refused to attend the extradition hearing and whose evidence had been disbelieved. There was no birth certificate, photograph, social-services record, or coherent explanation of the children’s care arrangements.
4. A section 7 assessment should not be ordered simply to investigate whether an appellant is telling the truth where the evidential platform is wholly inadequate. The court must assess whether further evidence could realistically affect the Article 8 outcome. Here, even assuming the principal assertions could be established, there was no realistic prospect that the impact on the child, viewed with the other factors, could bar extradition.
5. The court adopted the procedural approach previously used in Antoniewicz concerning the stayed Article 3 prison-conditions ground. The Article 8 issue was therefore determined without an adjournment or assessment direction.

• High Court (Administrative Court): District Judge Snow ordered extradition on 28 September 2020. Morris J refused permission to appeal on the Article 8 ground on 20 January 2021. Mr Justice Fordham refused renewed permission, refused admission of the fresh evidence, and declined to direct a section 7 assessment.