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Extradition: what the family lawyer needs to know

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Extradition: what the family lawyer needs to know

Sarah Tyler

The relocation of children across borders and international separation of children from their parents raises a number of significant issues for family lawyers. This short article looks at the interrelationship between extradition and family proceedings, and what family lawyers need to know.

Extradition is the formal process where one country requests another to return a person in order to stand trial or to serve a sentence. It arises relatively infrequently in the family courts, but presents difficulties where the family and extradition courts are taking conflicting, often diametrically opposed decisions.

For example, it may arise in the context of abduction give rise to a criminal offence contrary to CAA 1984 s1, but for the left behind parent there is no guarantee that the extradited parent will facilitate the return of the child. This was the case in Ford v Halil [2018] EWHC 1213 (Fam) and [2018] EWHC 1997 (Fam), when although the

Father originally sought wardship and engaged with ICACU, he did not proceed with his Hague Convention application. He did inform the police of the mother’s wrongful removal of the two children to the USA and she was subsequently – but over two years later, extradited to the UK and was in custody at the time of the final hearing. The children remained with their (now) stepfather in Alaska, USA. Holman J hearing the case found that it was “plain as a pikestaff” the children were now habitually resident in the USA and proceedings should be litigated there. Mr Justice Holman found “it would be hard to devise a more emotionally damaging set of facts that those which currently surround the children with whom I am concerned” [§1].

In Re K and D (Wardship without notice return order) [2017] EWHC 153 (Fam) extradition, combined with wardship applications, did work effectively to bring about the return of two teenage children to the UK. The success may have been dependent upon the willingness of Northern Cyprus and Republic of Cyprus to assist with the return of the children and the extradition of the mother, but given the lack of reported cases on extradition following abduction it is difficult for practitioners to be certain of the best approach. It is clear from Ford v Halil however that by far the better remedy would have been an application pursuant to the Hague Convention, and that extradition is an altogether more difficult method of enforcement.

In cases where extradition of a parent in the UK is sought abroad, that parent may be the primary or sole carer, or both parents may be sought. This may have significant consequences for the children of any requested persons. Care proceedings may need to be initiated, or in some cases care proceedings may already be ongoing. Whereas the family courts have “the best interests of the child” woven into every welfare decision that is made, the extradition courts have only recently begun to weigh it in the balance. In HH and another v Deputy Prosecutor of the Italian Republic, Genoa, [2012] UKSC 25, Lady Hale held the court must determine whether the interference with the children’s private and family lives was outweighed by the weighty public interest in extradition, it being likely unless the consequences of such interference would be exceptionally severe. Furthermore, and somewhat radically, Lady Hale held the Court and all parties must be alive to the need to obtain the information necessary to have regard to the children’s best interests as a primary consideration [§86]. This is an area where a parent’s family lawyers can be proactive, in advising criminal solicitors on the merits and possibilities of obtaining reports under section 7 or section 17 of the Children Act 1989, considering alternative carers, or advising on the options for section 20 accommodation.

Thus far it appears that the two jurisdictions are not yet well versed in “speaking” to each other, although there is some evidence of cooperation.  In PA v Portugal [2017] EWHC 331 (concurrent care and extradition proceedings) Mr Justice Green was given “real assistance” from the family judge who shared information on possible outcomes, which then enabled Mr Justice Green to issue a Note explaining his likely decision on extradition on each possible realistic outcome for the child. However, it should be noted that there is no clear or agreed upon procedure, which creates significant uncertainty for the parties.

This is an area that is likely to grow and expand. In the absence of formal guidance, family law practitioners should take steps to closely liaise with their client’s criminal solicitors, and be proactive about seeking and providing disclosure in order to enable them to most fully make their case on extradition.

 

This post was written for Coram’s international children law blog and is featured in our September 2019 newsletter. To subscribe, email theresa.yurkewich@coramchambers.co.uk. Our International Children Law team has extensive experience in public and private child disputes. We act as family law barristers on a range of international children law matters, including relocation, Hague and non-Hague child abduction, international surrogacy, and cases of contested jurisdiction. 

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