28 February 2011

FOURTH SECTION
Application no. 63019/10
by E.B. 
against the United Kingdom
lodged on 28 October 2010

STATEMENT OF FACTS
THE FACTS
The applicant, E.B., is a Polish national who was born in 1976 and lives in London. She is represented before the Court by Mr S. Fidler, a solicitor‑advocate practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Polish national who entered the United Kingdom in 2007. She has four children, aged respectively 17, 11 and 2 years old and 4 months old. A European Arrest Warrant was issued in respect of the applicant on 16 July 2009, following her conviction in Poland for three counts of insult, one of assault and one of threatening behaviour, for which she was sentenced on 6 February 2004 to eighteen months’ imprisonment.
The applicant’s appeal against extradition was heard in the District Court together with that of her partner, who was wanted for extradition following conviction in Poland of assault occasioning actual bodily harm and two counts of fraud. Both appeals were dismissed on 11 June 2010. At the time of her appeal, the applicant was pregnant and her two younger children had been in foster care since November 2009. The applicant had been enjoying supervised access four times a week with her children whilst they were in foster care. There was no material before the court from social services as to what arrangements had been put in place for the care of any of the applicant’s children in the event of her extradition, which the judge found “troubling.”
The (Senior) District Judge found that the applicant’s extradition would engage Article 8 but that the main issue was proportionality. The strong public interest in honouring extradition agreements and the need for exceptional Article 8 grounds in order to outweigh such interest was stated. In this particular case, there was a presumption that appropriate care would be put in place in Poland should the applicant need it, on grounds of her physical or mental health or to minimise the risk of suicide. Her family unit was “already fragmented with two children in care” and there was a “high probability” that the unborn child would be taken into care for the same reasons as the other two, namely their mother’s poor emotional state and inability to look after them. This was likely to occur regardless of whether or not she was extradited. There was case law in which the extradition of the sole guardian of children who were subject to care proceedings was found not to breach Article 8 (see A v. Croatia [2010] EWHC 918 (Admin)). Similarly, the extradition of pregnant women or nursing mothers had been found in previous cases not to be a violation (see, for example, Kristina Dirsyte v. Prosecutor General’s Office of the Republic of Lithuania [2008] EWHC 3331 (Admin)). Given the applicant’s already fragmented family life; the principle that she should face the consequences of her proven misconduct in Poland; and the presumption – which had not been rebutted – that her mental health and welfare could be adequately dealt with within the Polish penal system, it was concluded that there was no proper basis for discharging her from the extradition proceedings.
The applicant then appealed to the High Court. Her appeal at this instance proceeded separately from that of her partner, and the applicant expressly requested that her details be kept anonymous so that her partner would not be able to find out her whereabouts through the court proceedings. Before the High Court was a letter dated 18 October 2010 from social services, which provided an update on the current circumstances of the applicant and her children. Her youngest child had been born in August 2010 and mother and baby had progressed from hospital to a residential unit, where they had been joined by the applicant’s other two young children in September and October respectively. The applicant’s eldest daughter was being accommodated by the local authority in semi‑independent accommodation. The applicant was currently undergoing a parenting assessment which would determine whether her children could remain with her or not. If the applicant completed the assessment successfully and remained in the United Kingdom, then an ongoing care plan and support package would be put in place for the applicant to continue looking after her children in the community. However, it was also stated in the letter that, should the applicant be extradited to Poland, her three youngest children would be taken into foster care whilst the local authority liaised with the Polish authorities with a view to finding a longer-term care arrangement for the children in Poland.
The High Court dismissed the applicant’s appeal on 21 October 2010. As well as the cases mentioned above, the judge considered the Scottish case of Corinna Emma Reid v. Her Majesty’s Advocate 2009 WL 6527, which concerned the potential extradition of the mother of a six-month old baby, who was still breastfeeding. The Sheriff concluded in that case that the mother’s circumstances were not so exceptional as to require her discharge. However, regard had been had to the charges in question, which were of manslaughter and therefore very serious indeed.
The High Court judge in the present case found that Reid showed that the applicant’s situation was, in itself, no bar to extradition and stated:
“The fact is, sadly, that mothers do become pregnant and are sent to prison even though they are pregnant and it is known that the baby will be born in prison.”
It was then concluded that the evidence before the High Court did not support a conclusion that irretrievable damage, either to the applicant or her baby, would result from the applicant’s extradition. The judge expressed a hope that every opportunity would be taken by those responsible to ensure that the applicant’s arrival in Poland, and possibly more importantly that of her baby, would be as painless as possible.
On 28 October 2010, the applicant lodged an application before this Court and requested an interim measure to prevent her extradition. On 2 November 2010, the President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be extradited until further notice.

B.  Relevant domestic law
1.  The Extradition Act 2003
Part I of the Extradition Act 2003 deals with extradition to Category 1 territories which, by designation of the Secretary of State, include all the member states of the European Union which operate the European Arrest Warrant system. Poland is therefore a Category 1 territory.
Section 21 of the Act requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. If the extradition would be incompatible, then the judge is required to order the person’s discharge. Section 25 provides that if the physical or mental condition of the person whose extradition is requested is such that it would be unjust or oppressive to extradite them, then the judge must discharge them.
If the judge at the extradition hearing orders the person’s extradition, Section 26 provides for a right of appeal to the High Court. Section 32 provides for a right of appeal to the House of Lords against a decision of the High Court, with the leave of either the High Court or the House of Lords, which leave shall only be granted if the High Court has certified that the case involves a point of law of general public importance and the Court granting leave considers that the point ought to be considered by the House of Lords.
2.  Norris v. Government of United States of America [2010] UKSC 9
In a judgment handed down by the Supreme Court in February 2010, Lord Phillips, who gave the lead judgment and with whom all other members of the court agreed, stated:
“51.  I agree that there can be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate. The public interest in extradition nonetheless weighs very heavily indeed ... It is certainly not right to equate extradition with expulsion or deportation in this context.
...
52.  It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity ... Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate.
...
56. The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves ... the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition.
...
Usually the nature of the offence will have no bearing on the extradition decision. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition a disproportionate interference with human rights.
...
When considering interference with article 8, the family unit has to be considered as a whole, and each family member ha(s) to be regarded as a victim.
...
I have concluded that the effect of extradition on innocent members of the extraditee’s family might well be a particularly cogent consideration.
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82.  In a case such as this it is the exception that proves the rule. One has to consider the effect on the public interest in the prevention of crime if any defendant with family ties and dependencies such as those which bind Mr Norris and his wife was thereby rendered immune from being extradited to be tried for serious wrongdoing. The answer is that the public interest would be seriously damaged. It is for this reason that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves.”
3.  A. v. Croatia
This case, cited above, was decided in the High Court in March 2010 and involved a Croatian national who was to be extradited to Croatia on charges of theft and use of a false passport. He had a wife in the United Kingdom, who suffered from mental health difficulties and from whom he was estranged, and a son who was subject to care proceedings and was at risk of being taken into foster care.
The High Court held:
“When a parent commits serious offences and loses his liberty, there is an almost inevitable serious impact on the family. They are sometimes the worst sufferers. As Norris indicated, where there is going to be severe suffering to a family, and the offence itself is fairly trivial, it is possible to envisage circumstances where to order extradition would be disproportionate. But, as the judgments in that case confirm, such cases are likely to be very rare. I do not consider that this is one of them. The passport offence, is, as the District Judge observed, a serious matter.”
4.  Kristina Dirsyte v. Prosecutor General’s Office of the Republic of Lithuania [2008] EWHC 3331 (Admin)
In this case, which involved a pregnant Lithuanian national who had an Algerian boyfriend in the United Kingdom, who might not be able to visit her in Lithuania, the High Court found that there were no “striking and unusual facts” which would render the appellant’s extradition disproportionate in terms of her Article 8 rights.
COMPLAINT
Relying on Article 8 of the Convention, the applicant complains that her extradition to Poland would amount to a disproportionate interference with her private and family life.
QUESTION TO THE PARTIES
Would the applicant’s extradition to Poland and consequent separation from her children, including an infant whom she is breastfeeding, be in violation of Article 8?