Court must balance article 8 rights of children with Extradition requests

When must the rights of children under article 8 be taken in to account under the Extradition Act 2003? This is the question currently being asked in the Supreme Court in the case of PH/HH v Deputy Prosecutor of the Italian Republic and FK v Polish Judicial Authority. The appeal of PH concerns the respondent's request for the extradition of two parents to Italy pursuant to European Arrest Warrants ("EAW") to serve sentences of imprisonment. PH, the father, and HH, the mother, have three children aged 10, 7 and 2 years. Both PH and HH were convicted in their absence of drug trafficking offences. On the information now available, PH will be required to serve approximately 4 years' imprisonment and HH will be required to serve approximately 9 years and 7 months' imprisonment. PH and HH are seeking to resist extradition under section 21 of the Extradition Act 2003 on the basis that their simultaneous deportation will constitute a disproportionate interference with their rights and the rights of their children under article 8 of the European Convention of Human Rights. HH is resisting extradition on the additional basis that it would be oppressive to extradite her in light of her mental health within the meaning of section 25(2) of the 2003 Act. John Jones & Steven Powles were instructed on behalf of the appellants. Caoilfhionn Gallagher was instructed by the offical solicitor to represent the interests of the children.

FK moved to the UK from Poland with her husband and three children in June 2002. Two European Arrest Warrants have now been issued against her in relation to various alleged offences in Poland. The Appellant and her husband now have five children, two of whom are very young, and her husband is unwell and incapable of looking after them on his own. The Appellant argues that, in view of her family circumstances and the fact that the crimes alleged are of no great gravity, the interests of the children should prevail in conducting the balancing exercise for the purpose of deciding whether extradition is proportionate under Article 8 ECHR. Edward Fitzgerald QC and Ben Cooper act for the appellant.

The Supreme Court will decide in due course whether the High Court erred in failing to take due account of the interests and rights of the Appellants' children, as distinct from those of the Appellants themselves, in assessing whether their extradition would be incompatible with Article 8.

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