Right to Family Life
Doughty Street barristers have been instrumental in the development of the right to a private and family life under Article 8 of the European Convention on Human Rights (ECHR).
Members of our extradition team acted in the Supreme Court case of HH v Italy; F-K v. Poland, which was a landmark in the development of family rights and best interests of the children of parents facing extradition proceedings.
Prior to HH, jurisprudence on the point was underdeveloped and reliance was rarely placed on Article 8 in opposing extradition. The Supreme Court was unanimous in holding that Article 3(1) of the UN Convention on the Rights of the Child requires that the best interests of the child must be a primary consideration for a court considering extradition of one or both parents of that child. A careful, fact-specific analysis of the potential effects of extradition on the child would in future be required. The availability of alternative measures, such as prosecution here or early repatriation would have to be considered and the views of the child should be taken into account where possible.
The High Court has since applied a simple proportionality test to extradition in a way that courts previously failed to do. The principles from HH have formed the basis of an ever-growing series of Article 8 victories for dependent children and their parents. The inadequacy of care plans for dependent children was scrutinized in A and B v Hungary and the impact of a shared experience of domestic violence and the mother’s role in protecting the children during their escape was decisive to the assessment of proportionality in ZZ v Lithuania.
HH, and the cases that have built on it, have entrenched a principled framework for the protection of children’s rights in extradition cases now deployed on a daily basis. These cases form part of a more sophisticated practice in the assessment and proof of children’s best interests and in the conduct of the proportionality balancing exercise for parents facing removal from their dependents. Taken together, there is no doubt that HH and its progeny show what can be achieved for vulnerable clients and their children when rights are correctly applied.