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| 2 minutes read

How do children matter in extradition proceedings?

In a series of talks, specialist barristers Amelia Nice and Mary Westcott examined the substantive and procedural ways in which the best interests of children involved in extradition proceedings are, and might be, treated.

With this year marking the twenty year anniversary of the Convention on the Rights of the Child, one might think the guiding principles in which the best interests of the child shall be the primary consideration are unassailable.

In extradition proceedings however, in particular when compared with family cases, a clear framework with which to adequately and objectively consider children is conspicuously absent.

By comparing the mechanisms and guidance available in different jurisdictions, best practice points emerged during a wide variety of collaborative presentations and discussions:

  • On 16 July 2019 - Kingsley Napley’s International Lecture Series, with Dr Tom Grange (psychologist);
  • On 10 October 2019 – roundtable at MW Solicitors, with Malcolm Hawkes; and
  • On 6 November 2019 – Coram Chambers’ Inaugural International Children Law Conference.

At present, Lady Hale’s dicta in HH v Italy [2013] 1 AC 338 remains the start and end point for consideration of children for the purposes of extradition challenges based on Article 8 ECHR. For example, at paragraph 86:

“The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain information necessary in order to have regard to the best interests of the children as a primary consideration and to take steps accordingly.”

However, case law suggests the onus is too often placed on defence representatives. Further, the processes by which first instance extradition Courts can obtain the evidence they “will have to have” in order to safeguard best interests remain opaque and frequently reliant on cooperation by austerity hit local authorities, unaware of the details of extradition cases.

How to treat and obtain evidence from concurrent family proceedings and anonymity considerations present further serious challenges to practitioners, in particular for first instance proceedings which are criminal, so open, and designed to proceed at pace.

Children matter in extradition cases far beyond Article 8 ECHR challenges, for example to arguments about forum, applications for voluntary surrender instead of extradition and applications for penalty transfer to the UK.

Doughty Street is the UK’s leading child rights chambers and is hosting a Universal Children’s Day Lecture on 20 November 2019, to be given by Professor Geraldine Van Bueren QC, and chaired by Lord Kerr, Justice of the Supreme Court of the United Kingdom

Doughty Street’s extradition team is the top-ranked set in the UK for extradition in both the Legal 500 and Chambers and Partners (Extradition) for 2020, with more ranked juniors than any other set: