UNITED KINGDOM

Title:

BH, KAS or H v. The Lord Advocate, The Scottish Ministers

Court:

Appeal Court of Scotland, High Court of Justiciary

Date:

July 29, 2011

CRC Provisions:

Article 3: Best interests of the child

Other International Provisions:

European Convention on Human Rights, Article 8 (Right to private life)
Extradition Treaty, Protocol of Signature and Exchange of Notes between the United States and the United Kingdom of 8 June 1972

Domestic Provisions:

Extradition Act 2003, Section 87

Case Summary:

Background:

Proceedings were brought in the United States against Mr. and Mrs. H for offences relating to the sale of chemicals used to manufacture methamphetamine, and the United States requested the extradition of Mr. and Mrs. H from Scotland to face the charges. Mr. and Mrs. H opposed the extradition on numerous grounds, including that their family life would be severely disrupted given that they together cared for Mrs. H's six children.

Issue and resolution:

Extradition. The Court found that, although the children's lives would be disrupted, Mr. and Mrs. H must nonetheless be extradited to face charges in the United States.

Court reasoning:

The public interest in extradition for such a serious crime outweighed Mr. and Mrs. H's right to private life. In reaching this decision, the Court noted that extradition should be granted where it is necessary for the prevention of disorder or crime, and that only in exceptional circumstances would an accused’s right to private life outweigh the legitimate aim of their extradition. As part of its analysis, the Court examined a prior case that had considered the CRC when cancelling the deportation of a parent, but found that case not to be directly relevant given the criminal charges pending against Mr. and Mrs. H.

Excerpts citing CRC and other relevant human rights instruments:

Lord Reed

[79] Although many authorities were cited in the course of the present proceedings, the only other case which it is necessary to consider in detail is the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148. That case concerned a deportation decision, the practical effect of which was that the children of the person to be deported, who were United Kingdom citizens, would also have to leave the UK. The discussion focused on the consideration which should be given by the decision-maker to the best interests of the children. In considering that matter, Baroness Hale, with whose reasoning the other Justices expressed agreement, noted that it is the practice of the European Court of Human Rights to refer to specific international texts in order to inform its interpretation of more general Convention provisions, in accordance with Article 31(3)(c) of the Vienna Convention on the Law of Treaties. In particular, the Strasbourg court had referred to the United Nations Convention on the Rights of the Child ("UNCRC") in order to inform its interpretation of Article 8 [of the European Convention on Human Rights], for example in the Grand Chamber judgment in Neulinger and Shuruk v Switzerland, 6 July 2010, which concerned international child abduction. Baroness Hale also noted that the spirit, if not the precise language, of the UNCRC had also been translated into our national law in a wide range of contexts, including the law relating to immigration and asylum. Since there was in that context a statutory duty to have regard to the need to safeguard and promote the welfare of children when taking decisions about deportation or removal, it followed that any decision taken without regard to that need would not be "in accordance with the law" for the purpose of Article 8(2). Further, the Strasbourg court would expect national authorities to apply Article 3(1) of the UNCRC, which requires that "in all actions concerning children...the best interests of the child shall be a primary consideration". The immigration authorities were therefore obliged to treat the best interests of the children as a primary consideration. This did not mean that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the decision-maker did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, was to consider those best interests first.

[80] It is important to note that ZH was concerned not with extradition but with deportation. Extradition is itself the subject of an extensive body of international law. The emphasis in the more recent international instruments, such as the EU Council Framework Decision of 13 June 2002 on the European Arrest Warrant, is upon the obligation of the requested state to surrender the requested person promptly so that the administration of justice can then proceed without delay in the requesting state. The intention that extradition should operate speedily and simply is reflected in the timetables laid down in the 2003 Act. Since there is a strong public interest in the comprehensive application of extradition treaties, and it is inherent in extradition that it is almost certain to involve an interference with family life, it follows that the approach adopted to Article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. The approach of the Strasbourg court was stated in King v United Kingdom in the following terms:

"Mindful of the importance of extradition arrangements between States in the fight against crime (and in particular crime with an international or cross-border dimension), the Court considers that it will only be in exceptional circumstances that an applicant's private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition."

Since the factors which are generally of overriding importance in extradition cases are not present in deportation or expulsion cases, it follows that decisions on Article 8 rights in cases of the latter kind are of no direct relevance in the context of extradition.

Notes:

A summary of the case relating to the Convention on the Rights of the Child cited in this decision, ZH v. Secretary of State, is available at http://www.crin.org/Law/instrument.asp?InstID=1520.

CRIN Comments:

CRIN believes this decision is inconsistent with the CRC. Under Article 3 of the Convention, children's best interests must be a primary consideration in any proceedings that involve them, and extradition proceedings are no exception. As such, the Court should have seriously considered the negative effects that sending a parent or care-giver to face charges abroad would have on his or her children before concluding that extradition would be necessary in the public interest.

Citation:

[2011] HCJAC 77, 2011 WL 2748082

Link to Full Judgment:

http://www.bailii.org/scot/cases/ScotHC/2011/2011HCJAC77.html

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.

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