Mark Smith features in Family Law Journal: Extradition and family proceedings: where does the balance lie?

The overlap between family and other proceedings is not uncommon and sometimes a thorny situation to negotiate. Many practitioners will be experienced at dealing with parallel criminal or immigration proceedings, but there are other areas that can present even more challenging issues. One such example is the cross-over with extradition proceedings. Some extradition requests are for minor and dated offences and the court has discretion to refuse extradition if it would be a disproportionate interference with a person’s Art 8 right to a family life. This article looks at how the extradition courts balance the public interest in extradition with a requested person’s Art 8 rights, offering suggestions for family practitioners dealing with such parallel proceedings.

Extradition

Extradition is the removal of a person to another country in order to stand trial or serve a sentence for criminal conduct in that country. Requests are made by a judicial authority (‘JA’) in EU member states, which may be a court or public prosecutor, and by the government in non-EU countries, and the recipient is known as a requested person (‘RP’). 

Extradition is often confused with deportation, but it is a wholly different process. Deportation involves removing a non-British citizen from the UK because their presence is not conducive to the public good, or they have criminal convictions in the UK, and preventing them from lawfully returning.¹ But contrast, extradition can apply to British citizens (although some countries, such as Germany, have a policy not to extradite their own nationals) and a RP is not barred from returning to the UK after their trial and/or sentence.

In 2021, a total of 812 people were arrested in England and Wales on extradition warrants from EU countries alone, principally Poland and Romania, although that is the first time the figure has fallen below 1,200 since 2009, topping 2,000 in 2015.² In addition, there are a significant but fewer number of arrests on requests from non-EU countries, such as the USA, Russia and the UAE. Notable UK extradition cases include a request for Chilean dictator General Pinochet in the early 1990s, the US requests for accused British hackers Gary McKinnon in the 2000s and Lauri Love in the late 2010s, and the extradition requests for Julian Assange to Sweden and then the US.

The extradition process 

An extradition arrest is based on an extradition warrant or, in some cases, less detailed information such as an Interpol Red Notice. The RP will be transported to court for their first appearance where they can receive advice from a legally-aided duty lawyer and must choose whether to consent to extradition. If the RP does not consent, the court will inspect the request and decide whether they should be extradited or discharged. In non-EU cases, the Secretary of State must then also decide whether or not to allow the request (with Jack Straw and Theresa May famously refusing to do so in General Pinochet’s and Gary McKinnon’s cases, respectively).

Somewhat unusually, first instance extradition proceedings are all heard at a single court: Westminster Magistrates’ Court. The route of appeal lies to the High Court and then to the Supreme Court. It is a bespoke procedural framework that only applies to this relatively niche area of law and results in a large amount of case law at High Court level that follows topical legal issues, recently the fallout from Brexit and the effect of extradition on immigration status and applications under the EU Settlement Scheme.

The target timeframe for determining requests was 60 days under the old EU legislation, but almost invariably took much longer. Cases can take between 3–12 months at first instance depending on the complexity, and even longer on appeal. One of the oddities of extradition law is that issues in the requesting state, such as inadequate prison conditions, tend to affect a whole raft of requests and can result in significant delays whilst cases are stayed behind a test case. Until recently, most Polish and Hungarian requests have been stayed for around 18 months pending decisions on the rule of law in those countries.

It is also important to understand that a discharge in extradition only applies to England and Wales; the extradition request does not disappear unless the warrant is withdrawn in the requesting state. Whilst UK extradition lawyers often work closely with their foreign counterparts to arrange with their foreign counterparts to arrange this, RPs can be at risk of being rearrested in another country on the same warrant whilst on holiday and starting the process all over again. In AG v Poland,³ the RP had resisted extradition in Germany on the basis she was the sole carer for her daughter, but was arrested a few years later on the same warrant when she left her daughter with friends for a weekend to attend her sister’s funeral in the UK. Thankfully the UK court came to same conclusion as the German one, and she was able to return to Germany.

The court’s decision itself is governed by the Extradition Act 2003, which sets out various bars to extradition, including:

• Lack of detail in the warrant,
• A ‘dual criminality’ condition requiring that equivalent conduct would be an offence in England and Wales,
• Lack of a decision to prosecute in the requesting state, to prevent RPs being remanded awaiting trial for long periods,
• Extraneous reasons for the request, such as the RP’s political opinions (a common bar in Russian requests),
• Oppression due to the passage of time, given some offences can date back to the early 2000s with little explanation for the delay,
• Oppression due to a physical or mental condition, relied upon by the newly-married Mr Dewani accused of murdering his bride on their honeymoon and which delayed (but ultimately did not prevent) his extradition to South Africa,
• A real risk of a breach of the Art 3 right to freedom from torture or inhuman or degrading treatment, often relied upon in respect of countries with notorious poor prison conditions such as Romania, Bulgaria, India, Russia . . . (the list goes on),
• A real risk of a flagrant denial of the Art 6 right to a fair trial, recently raised in relation to the deteriorating rule of law in Poland, Hungary, and in Turkey under Erdogan, and
• last but not least, a disproportionate interference with the Art 8 right to a private and family life.

It is the Art 8 right to a family life that has the obvious natural overlap with family law, and so it is important for family practitioners to understand how Art 8 is approached in the context of extradition.

Article 8 in extradition

It’s well-known that, as a qualified right, a court can lawfully interfere with a person’s Art 8 family life so long as it is in accordance with the law, necessary in a democratic society, and proportionate to a legitimate aim. Given the general importance of upholding international extradition agreements, it is the proportionality aspect that occupies most of the extradition court’s time in determining a request.

In Norris v Government of the USA⁴ the House of Lords made clear that, although there was no test of exceptionality, a balancing exercise must be conducted and it is likely that an RP’s family life will only outweigh the public interest in extradition where the consequences of extradition would be exceptionally severe. This was reaffirmed in HH⁵ where family law’s own Lady Hale (as she was then) set out the key factors that will weigh in the balance, including the ‘constant and weighty’ public interest in extradition, that the UK should honour its international treaty obligations, and that the UK should not be a ‘safe haven’ for fugitives from justice.⁶ That said, the public interest depends upon the seriousness of the offences in the warrants and the delay since they were committed, and so the majority of successful Art 8 arguments are based on minor and/or old offences.

Despite not changing the actual test, HH resulted in a noticeable shift in the approach to Art 8 in extradition in favour of RPs. Lady Hale repeated the comments from her leading judgment in ZH,⁷ an immigration case, where the court held that a child’s best interests were ‘a primary consideration’ when deciding whether to remove or deport one or both parents from the country. The welfare principle does not appear at all in the Extradition Act 2003, and so HH represented a refocussing on the best interests of the child in extradition proceedings.

The approach to Art 8 in extradition still falls a long way short of a child’s welfare being the paramount or determinative consideration, as in s 1 of the Children Act 1989. Lady Hale was clear that this is only justified where the decision directly affects the child’s upbringing, such as the decision to separate a child from both her parents. Where the decision affects the child more indirectly, such as the decision to separate one of the parents from the child, by extradition or deportation, then the child’s interests are only a primary consideration, meaning that they should be considered first, but may be outweighed by countervailing factors.

Issues of parallel proceedings

It will come as no surprise that some of the 1,000+ people who are arrested on extradition warrants each year are already in the midst of private or public children proceedings. The immediate issue is the cross-over of jurisdiction: the family court is determining where and with whom a child should live, but the extradition court is deciding whether that person should remain in the country. Who should go first?

The general approach set out in RT v Poland⁸ is that extradition should not normally wait for family proceedings. The main benefit is that this avoids the family court having to revisit the issues if one of the parents is extradited. It is also borne out by experience that the extradition court usually continues without waiting for the family proceedings to conclude.⁹ But there are also examples where extradition has been delayed.¹⁰

Should the family court wait for a decision about extradition? There is no clear answer in the case law.¹¹ It may be disproportionate for a young child to have to wait for an extradition decision where the potential carer is not recommended by professionals and is requested for terrorist offences where the public interest in extradition is very high. Equally, it would a travesty if a child were placed for adoption because the family court was unable to wait for the parent to be discharged on a flimsy extradition request for a minor driving offence.

Timescales are also an important factor. Family cases probably last longer on average, but extradition proceedings are increasingly being stayed on appeal behind test cases, as mentioned above. The proceedings will also not necessarily begin at the same time – the family proceedings may have already commenced or may only begin as a result of the extradition request (especially care proceedings) – so it cannot be assumed that the extradition decision will always come first if both sets of proceedings are allowed to run their course.

The issue of such parallel proceedings is not just about which takes priority; the decisions are interdependent. If living with the RP is the only or best placement option for the child, it is a strong reason to say the RP should not be extradited even if the offences are serious,¹² and so the view of the family court can be of crucial importance in extradition. There are various ways this information can be shared: disclosure, judicial liaison, or joinder of interested parties. How are these potentially complex issues to be negotiated? It is helpful to consider the scenarios in more detail to work out where the balance lies.

Private children

Private children proceedings may be the more straightforward. If the status quo is that the child only ‘spends time’ with the RP, it is unlikely to result in a successful Art 8 argument. However, the situation is different if the child is settled living with the RP and the other parent is either unable to care for the child full-time or a move to the other parent would be particularly traumatic for the child in question (eg if the child has additional needs). In either situation, the extradition court is likely to want information from the family court.

The most straightforward way to provide such information is for the extradition court to request a welfare report under s 7 of the Children Act 1989. The extradition court routinely requests such reports from local authorities, who may have become involved in the private children proceedings where a s 37 report has been directed. But the extradition court has never requested a welfare report from Cafcass (as far as the author is aware). Clearly Cafcass is primarily set up to assist the family court and so such an order would be unusual, although the power seems to be available in extradition, just as it does to the family court.

Nevertheless, a welfare report is not a silver bullet. This was exemplified in a recent case¹³ in which a 5-year-old boy had been living with his father for most of his life. The father was requested by Hungary to face fraud allegations but there were significant doubts about the mother’s ability to care for her son (herself having been previously extradited to the USA for hacking into the Pentagon). The s 37 report requested by the family court, and the s 7 report provided to the extradition court, both said that the mother could care for the child with support, but the father’s case was that the report was flawed and had overlooked serious safeguarding issues. The father naturally sought to challenge the reports in both proceedings. The result was not a happy one.

The family court unfortunately decided to stay the proceedings pending the extradition outcome, but the extradition court was not the best forum to determine all the issues as the mother was not a party. Although the extradition court allowed the father to cross-examine the social worker on her conclusions (bizarrely, this is unusual in extradition), the advocate for the Hungarian authorities was left to effectively defend the mother’s position on factual disputes without instructions. It would have been preferable by far if the family court had conducted a fact-finding into the disputed matters and that judgment had been disclosed into the extradition proceedings. Ultimately, the father was discharged in extradition but, rather unexpectedly, breached his bail shortly before the judgment and abducted the child to Turkey, much to the consternation of everyone in both sets of proceedings.

The issue in that case may also have been alleviated if the mother had been permitted to join as an interested party, although no such provision currently exists at first instance. The extradition court (and the father) would doubtless have strongly opposed the suggestion anyhow, as it would likely have been seen as the extradition court determining satellite issues that were more directly relevant to the family proceedings. The extradition court is actually perfectly well equipped to determine factual matters, and more familiar with doing so than it is with critiquing a social worker’s analysis, but it does not fit with the ideal of a streamlined 60-day extradition process. A fact-finding in family proceedings is certainly a neater solution.

If there is no social work involvement in the private children proceedings, the extradition court generally relies on the RP requesting disclosure from the family court. Whilst this application is likely to be granted, in accordance with the principles in Re EC,¹⁴ extradition practitioners are not familiar with family court procedure and will usually require practical assistance with making the application.

The more principled issue is whether it is even appropriate for the RP to be the gatekeeper to the evidence that has been filed in family proceedings. Certainly this is the preferred route for RPs seeking to present themselves as essential to their child’s wellbeing, but the other parent and the court may prefer a more balanced view. Unfortunately, as mentioned above, the other parent has no option to join as an interested party in the extradition proceedings at first instance, and there is no effective mechanism for the family court to force the RP to disclose all the relevant material into the extradition proceedings. Another approach might be judicial liaison. This has certainly been beneficial in some extradition cases,¹⁵ but proved exceedingly difficult in others,¹⁶ and so is by no means a reliable route for information to be shared between the two sets of proceedings.

Public children

Perhaps the scenario likely to impact extradition more frequently is where there are parallel care proceedings. These may have commenced prior to arrest on the extradition warrant or because of it. In either situation, the stakes are likely to be high if the alternative placement option is foster care or even adoption. The severity of the alternative is a stronger reason for extradition to await the outcome of the family proceedings, but such a route is plagued with difficulty.

In PA v Criminal Court Coimbra (Portugal), the extradition court adjourned until after the care proceedings relating to a single mother looking after her 11-year-old daughter. The court went further and provided a provisional view on whether extradition would be ordered depending on the family court’s decision: if it was in the child’s best interests to remain in foster care, the mother would likely be extradited but, if it were best that she lived with the mother, the court would consider the situation carefully although it could not rule out extradition. Ultimately, the family court made a care order with a care plan for long-term foster care, and the extradition court duly extradited the mother. The fairly vacuous nature of the provisional views expressed helps explain why this practice was later discouraged by a two-judge Divisional court in RT v Circuit Court in Tarnobrzeg, Poland. The main concern is the perception of unfairness created by a court expressing a view before seeing all the evidence or hearing full argument on it.¹⁷ Such a view could sway the family court but might not actually be a reliable indicator of what the outcome will be once all the evidence is properly considered.

RT v Circuit Court in Tarnobrzeg, Poland also considered the need for children to be separately represented in extradition proceedings. The limited voice of the child in extradition might come as a surprise to family practitioners. The extradition court often has very little information from the child themselves: they are not a party and there is no power for them to be represented by a guardian. The involvement of a litigation friend for a child is not unheard of but has most often taken place in cases where both parents are subject to an extradition request.¹⁸ The Official Solicitor (a ‘last resort litigation friend’) also cannot act in the magistrates’ court so can only assist on appeal, meaning the first instance judge must rely on the child’s views expressed through experts, such as child psychologists, social workers or their parent themselves. Lady Hale said that the use of the Official Solicitor will be rare as it is only rarely that proposed extradition is likely to be seriously damaging to the child’s best interests.¹⁹ However, ‘rare’ does not mean ‘never’ and the use of litigation friends and the Official Solicitor seems to be a largely untapped resource in extradition proceedings.

There may be an even stronger argument for the child to have their own voice where the RP is not the child’s parent, but a relative or family friend that is being assessed as an alternative carer. It is not uncommon for a RP to be swiftly discounted as a carer by professionals simply due to the prospect of extradition, and all the more so when there is no parental bond to consider. But the consequences of adoption as opposed to a family placement are still extreme. It should therefore not be assumed that the mere existence of a request will necessarily lead to extradition. Not all extradition requests are due to convictions (just as many are accusations), or for the most serious offences (requests for driving without a licence are not uncommon), or for recent offending (many can date back 15–20 years), and all of these factors make an Art 8 discharge more likely. Neither does a request necessarily mean the RP is unfit to care for a child: the circumstances must be examined with care.

Parallel care proceedings have the benefit of being brought by a local authority that is more able to join as an interested party in extradition proceedings (although only on appeal). This is a very rare occurrence²⁰ but perhaps more due to a lack of understanding of extradition (and lack of resources) than any more principled reason. Such a step would address the issues of disclosure outlined above and may be a more effective go-between than the hit-and-miss world of judicial liaison.

Key points for family practitioners

What does all of this mean for family practitioners encountering a client with overlapping extradition proceedings? There are some key points to take away:

First, do not assume that an extradition request means the person will be extradited. Whilst this is often the case, it may not be in your instance if the client has a strong family life in the UK. Similarly, not all warrants are made equal: some are for minor and dated offences, so all is not lost! Even if the offences are serious, extradition may still be disproportionate if the client is the only realistic carer for a child, and there may also be other arguments that result in discharge quite apart from their Art 8 rights.

Second, share information with your extradition counterparts. Most extradition practitioners are just as unfamiliar with family law as you may be with extradition. Disclosure is vitally important where there are parallel proceedings and the decisions being made are interdependent.

Third, do not assume you should stand still until the extradition decision is made. This is not only because you may be waiting a long time, but also because it may be important to determine factual issues in the family proceedings or obtain favourable reports that can then be relied upon in the extradition proceedings.

Last, do not be afraid to get creative! This is an emerging area of law and the norms are yet to be fully established. There is scope for an extradition court to request a welfare report from Cafcass, for more children to have litigation friends, or for a local authority to become an interested party in extradition proceedings. It is important that both family and extradition practitioners play their part in helping to balance the important decisions being made in both these jurisdictions.

Ultimately, it is in everyone’s interests for the right decision to be made in extradition so that the family court does not plan for a placement with an RP that is likely to breakdown, but equally so a child does not needlessly miss out on a family placement that would be in their best interests.

Mark is a barrister specialising in extradition, international family and immigration matters. Mark has appeared in the Supreme Court and the Court of Appeal, as well as the High Court Family Division in relation to international family matters and the Administrative Court in extradition proceedings. He has particular expertise in cases involving cross-border issues and parallel proceedings across multiple jurisdictions. He is recognised within the Legal 500 for his work in international crime & extradition. 

Footnotes 

1- Immigration Act 1971, ss 3(5) and (6)

2- https://nationalcrimeagency.gov.uk/who-we-are/publications/600-wanted-from-the-uk-eaw-taca-statistics-calendar-year-2021/
file

3- Unreported – at first instance before Westminster Magistrates’ Court.

4- [2010] UKSC 9

5- HH v Deputy Prosecutor of the Italian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic, Genoa; F-K (FC) v Polish Judicial Authority [2012] UKSC 25

6- HH (cited above) at [8]

7- ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 1 FLR 2170

8- RT v Circuit Court in Tarnobrzeg, Poland [2017] EWHC 1978 (Admin)

9- Eg Zubkova v Polish Judicial Authority [2014] EWHC 1242 (Admin); Rogozinska v Circuit Court In Swidnica (Poland) (2016) [2016] EWHC 3242 (Admin); W v A Spanish judicial authority [2020] EWHC 2278 (Admin).

10- Eg PA v Criminal Court Coimbra (Portugal) [2017] EWHC 331 (Admin)

11- Although the Court of Appeal concluded in Re P (A Child) (Abduction: Inherent Jurisdiction) [2021] EWCA Civ 1171, [2022] 1 FLR 737, in the particular circumstances of that case, that the High Court was not wrong to proceed in making a return order in child abduction proceedings before knowing the outcome of the father’s extradition case.

12- Eg Court of Appeal of Liege, Belgium v E [2018] EWHC 2413 (Admin), where a single mother of two boys with significant additional needs was discharged on an extradition request for armed robbery and human trafficking offences (the decision was successfully appealed by the JA but the first instance judge ordered discharge for a second time when the case was remitted back to her).

13- MC v Hungary (unreported) at first instance before Westminster Magistrates’ Court.

14- Re EC (Disclosure of Material) [1996] 2 FLR 725, relating to disclosure from family to criminal proceedings but applicable to extradition.

15- Eg PA v Criminal Court Coimbra (Portugal) at [11]

16- Eg Zubkova v Polish Judicial Authority at [8]

17- RT v Poland at [56]

18- eg HH (cited above) where the official solicitor acted as a litigation friend, AB v Hungary [2013] EWHC 3132 (Admin) where the child’s adult half-brother acted as a litigation friend.

19- HH at [86]

20- Eg PA v Criminal Court Coimbra (Portugal) (cited above) but not commented upon in the judgment.