Children's rights and extradition

On 20 June the UK Supreme Court handed down judgments in the extradition cases of HH, PH, BH, KAS and F-K, heard together in March this year. The court considered whether or not to allow the extradition of parents to stand trial or to serve sentences abroad. Thirteen children aged between one and 17 were directly affected.

The judgments give detailed guidance that will have a wider significance on the legal duties to children, whenever making decisions which could result in enforced separation from their parents, especially when this would be against their best interests.

These judgments also add significantly to the understanding of how children’s rights must be considered not just in the adjudication of individual rights versus the state, but also in recognising that there are public interests and obligations in the implementation of children’s rights.

Coram Children’s Legal Centre intervened in these appeals to make submissions on the importance of children’s rights in this area of law.

As the court itself observed, for nine of the children, the decision to allow extradition was “heart-rending” and would have a “devastating effect” but the seriousness of the offences meant that there was no reasonable alternative to extradition. For the other four, the court stopped the mother’s extradition for lesser offences because it would have been disproportionate to the children and their family’s Article 8 rights.

Best interests of children
Beyond the particular facts of each case, the findings are another positive step in putting children’s interests at the heart of decision making. The court applied its judgment in ZH (Tanzania) on the weight of best interests and confirmed the importance in UK law of children’s rights contained in the UNCRC and the European Union Charter of Fundamental Rights.

The court found that where a child can be cared for by one parent it is most likely that extradition of the other would be sanctioned, but stressed that there is no “exceptionality” test. In extradition cases the public interest in maintaining law and order and the integrity of the criminal justice system is held to be extremely high but the weight given to this interest will vary from case to case and is not a constant. It still does not rank higher as a starting point than the best interests of the children affected.

However, children’s interests may still be overridden where on a factual assessment of all the circumstances of the case, other considerations cumulatively outweigh the child’s interests. This will always be a fact-sensitive exercise, calling for detailed knowledge of the needs, wishes and feelings and care arrangements for the child.

It could, as in the F-K appeal, mean rejecting the extradition request completely, or arrangements for one parent to be extradited first followed by the ?other at a later point, or the trial could be transferred to the jurisdiction in which the children reside, or the parents returned to serve sentence in the country of the child’s residence as soon as possible.
 
The judgments establish that promoting the best interests of children is not only about assessing the proportionality and lawfulness of interference with a child’s family and private life – i.e individual rights in relation to the interests of the public – but there is a positive obligation on the state to promote children’s wellbeing and future development as an inherent value to society.

Whenever the public interest in criminal justice is used to seek to justify measures that will have a negative impact on the public interest in child welfare, there must be an attempt to reconcile these competing public interests in a way that, first, seeks to promote children’s best interests and, second, if interference is unavoidable, does the least damage to children.

Children are a country’s most valuable asset for the future. As Lady Hale decided: “The court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child.”

To read the judgment in full, go to: www.supremecourt.gov.uk/decided-cases/index.html