The recent Supreme Court cases of HH, PH & BH [2012] UKSC 25 did not concern the deportation or expulsion of one or both parents, but rather their extradition. In HH, an European Arrest Warrant had been issued in respect of a Polish mother of 5 children, aged between 21 and 3 accused of offences of dishonesty in Poland: in PH & BH an arrest warrant had been issued in respect of both British parents of three children between the ages of 11 and 3, the parents having been convicted in absentia of a series of drug trafficking offences.

In these linked cases the Supreme Court, in a question certified by the Administrative Court, was asked to consider:

Where in proceedings under the Extradition Act 2003, the Article 8 rights of children of the defendants or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, it is necessary to modify the approach, of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)?

It should be noted that in the matter of Norris [2010] UKSC 9 the issue of Article 8 was not considered in respect of the likely impact it would have on any children rather it concerned an elderly couple who had enjoyed a long and close marriage leading to a finding that they were highly dependent on one another.

At paragraph 8 of this judgement, the Supreme Court drew the following conclusions from Norris:

(1) There may be a closer analogy between extradition and the domestic process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

(2) There is no test of exceptionality in either context.

(3) The question is always whether the interference with the private and family lives of the extraditee and other members of the family is outweighed by the public interest in extradition.

(4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no “safe havens” to which either can flee in their belief that they will not be sent back.

(5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

(6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

(7) Hence it is likely that the public interest in extradition will always outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.

Whilst the parties did not criticise the principles laid down in Norris, they did criticise the way in which those principles have been summarised and applied in subsequent cases and further that Norris was not asked to consider the special position of children.

At paragraph 29, Lady Hale emphasised that

It is not correct that the approach of the court to article 8 rights has to be “radically different” as between extradition and expulsion cases.

At paragraph 30, she went on:

Any court in considering Article 8 would be well advised to adopt the same structured approach to an Article 8 case as would be applied by the Strasbourg court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims with those listed at Article 8.2. Third, it asks whether the interference is “necessary in a democratic society” in the sense of being a proportionate response to that legitimate aim. In answering that all important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale.

Secondly, in endorsing the approach of Huang v SSHD [2007] UKHL 11, she rejected the use of any ‘exceptionality’ test and re-affirmed that the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued.

At paragraph 33, Lady Hale stressed the importance of Courts adopting such an approach in a case where Article 8 was engaged and asking those questions as set out at paragraph 30. In a case involving children there are additional reasons to do so as the family rights of children are of a different order from those of adults for the following reasons:

(a) Article 8 has to be interpreted in a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have.

(b) Children need a family life in a way that adults do not……[D]epriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid as to what will happen to the child if her sole or primary carer is extradited.

(c) Although the child has a right to her family life and to all that goes with it, there is a strong public interest in ensuring that children are properly brought up.

(d) As the effect upon the child’s interests is always likely to be more severe than the effect upon an adult’s, 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 a child.

In her leading judgement, Lady Hale also considered the best way of presenting the children’s best interests to the court [para 82-86]. The key matters that ought to be considered are:

(a) Are there dependent children?

(b) Would the parent’s removal be harmful to their best interests?

(c) What steps may be taken to mitigate this?

In cases where the sole or primary carer were to extradited, Lady Hale commented that further investigations of the children’s best interests ought to be sought. Interestingly, she states at paragraph 84, that the Court may wish to consider a referral to the local Children’s Services for the children’s needs to be assessed under the Children Act 1989. In such circumstances where children face the loss of their sole or primary carer they would be classed as children in need for the purposes of section 17(10) of that Act. Further, Lady Hale stated that ‘In some cases, especially where there is a very young child or a child with health or developmental problems, it may be necessary to obtain a psychological or psychiatric assessment…’

In summary at paragraph 86, Lady Hale concludes

[T]he important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regards to the best interests of the children as a primary consideration, and to take steps accordingly.

In doing so, the Court ensure that they are compliant with Article 12 of the UNCRC.