FOURTH SECTION

DECISION

Application no . 63019/10 E.B . against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 20 May 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 28 October 2010 ,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with ,

Having regard to the decision to grant priority to the above application unde r Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms E.B. , is a Polish national, who was born in 1976 and lives in London . The President granted the applicant ’ s request for her identity not to be disclosed to the public (Rule 47 § 4 ). She was represented before the Court by Stephen Fidler , a solicitor advocate practising in London . The Government were represented by their agent, Ms R. Tomlinson, of the Foreign and Commonwealth Office. Observations on the merits were received from the respondent Government and the applicant and third party observations were received from the AIRE Centre and Fair Trials International.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The European Arrest Warrant and the domestic proceedings

3. The applicant entered the United Kingdom in 2007. At the time, she had two children: A., born in 1993; and B., born in 1999. She subsequently gave birth to a third child, C., born in 2008.

4. On 16 July 2009 a European Arrest Warrant (“EAW”) was issued in respect of the applicant in light of a conviction in Poland for three counts of insult, one of assault and one of threatening behavior for which she had been sentenced to eighteen months ’ imprisonment. She appealed against her proposed surrender to Poland, arguing that the surrender would lead to her separation from her children.

5. In November 2009, B. and C. were placed in foster care. The applicant enjoyed supervised access to them four times a week.

6. The applicant subsequently became pregnant.

7. On 11 June 2010 the District Judge ordered the applicant ’ s surrender to Poland. The judge found it “troubling” that 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. He accepted that her extradition would engage Article 8, noting that the main issue was proportionality. He referred to the strong public interest in honouring extradition agreements and the need for exceptional Article 8 grounds in order to outweigh that interest. The applicant ’ s 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 the applicant ’ s poor emotional state and inability to look after them. This was likely to occur regardless of whether or not she was extradited. Given the applicant ’ s already fragmented family life and the principle that she should face the consequences of her proven misconduct in Poland, the judge concluded that there was no proper basis for discharging her from the extradition proceedings.

8. The applicant appealed to the High Court.

9. In August 2010 she gave birth to her fourth child, D., and started breastfeeding him. She was subsequently placed in a residential unit with D., and B. and C. joined them in September and October respectively. At the time, A. was accommodated by the local authority in semi ‑ independent accommodation.

10. Social services subsequently provided an update of the circumstances of the applicant and her children to the High Court. They explained that the applicant was 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 her to continue looking after her children in the community. If the applicant were extradited to Poland, her three youngest children would be taken into foster care while the local authority liaised with the Polish authorities with a view to finding a longer-term care arrangement for the children in Poland.

11. On 21 October 2010 the High Court dismissed the applicant ’ s appeal against her surrender. The judge found that the applicant ’ s situation was, in itself, no bar to extradition. He concluded that the evidence before the 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 the hope that every opportunity would be taken by those responsible to ensure that the applicant ’ s arrival in Poland, and that of her baby, would be as painless as possible.

2. The proceedings before this Court

12. On 28 October 2010, the applicant lodged an application before this Court and requested an interim measure to prevent her extradition .

13. 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 .

14. On 22 February 2011 the application was communicated to the respondent Government for observations.

3. Subsequent events

15. By letter dated 17 November 2011, the applicant ’ s legal representatives informed the Court that B., C. and D. had been placed in local authority care. Care proceedings were commenced in respect of all three children.

16. In November 2011 the applicant gave birth to a fifth child, E. The child was immediately placed in local authority care and care proceedings were commenced.

17. By letter dated 15 March 2012, the applicant ’ s legal representatives informed the Court that a final care order had been made in respect of B.

18. By letter dated 30 May 2013, the applicant ’ s legal representatives informed the Court that final care and placement orders had been made in respect of C., D. and E. The applicant ’ s consent had been dispensed with.

B. Relevant domestic law

19. Part I of the Extradition Act 2003 deals with extradition t o Category 1 territories which include all the member states of the European Union which operate the European Arrest Warrant system. Poland is therefore a Category 1 territory.

20. 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.

21. 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.

COMPLAINT

22. Relying on Article 8 of the Convention, the applicant complained that her surrender to Poland would amount to a disproportionate interference with her family life since she would be separated from her family on account of “minor offences” committed in Poland .

THE LAW

23. Article 8 of the Convention provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

24. Following receipt of the parties ’ observations, it became apparent that B., C. and D. had been taken into local authority care and that care proceedings were pending (see paragraph 15 above). The application was therefore adjourned pending the conclusion of the care proceedings.

25. On 15 March 2012 the applicant ’ s legal representative confirmed that a full care order had been made in respect of her son, B. (see paragraph 17 above)

26. On 30 May 2013 the applicant ’ s legal representative confirmed that final care and placement orders had been made in respect of her sons, C. and D., and her daughter, E. (see paragraph 18 above).

27. By letter dated 26 February 2014 the Court invited the applicant and the Government to provide written observations on the appropriate treatment of the application in the light of the final care and placement orders made in respect of the applicant ’ s minor children. The applicant was specifically asked to comment on whether she was prepared to withdraw her application and to provide reasons in the event that she wished to pursue the application. She was informed that a failure to reply would result in a decision being taken on the basis of the file as it stood. A deadline of 12 March 2014 was imposed.

28. By letter dated 6 March 2014 the Government informed the Court that they had no further observations to make.

29. No response was received from the applicant ’ s legal representatives.

30. Since the nature of the Contracting States ’ responsibility under Article 8 in cases of this kind lies in the separation of a family following the extradition of one of its members, the existence of any interference must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the extradition (see, mutatis mutandis , Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 69, ECHR 2005 ‑ I ; and Nnyanzi v. the United Kingdom , no. 21878/06, § 56 , 8 April 2008 ). If, as in the present case, the applicant has not been extradited when the Court examines the case, the relevant time will be that of the proceedings before the Court (see, mutatis mutandis , Chahal v. the United Kingdom , 15 November 1996, § 86 , Reports of Judgments and Decisions 1996 ‑ V ; and Abdulkhakov v. Russia , no. 14743/11 , § 133 , 2 October 2012 ).

31. The applicant ’ s sole challenge to her surrender pursuant to the EAW before this Court was based on her separation from her minor children, including a son whom she was, at the time she lodged the application, breastfeeding. However, a number of significant developments have since taken place. Final care orders have now been made in respect of all four of her minor children. Placement orders have also been made in respect of C., D. and E., authorising the local authority to place them with prospective adopters; it is not clear from the information provided whether a placement order has also been made in respect of B. But in any event it is apparent that the applicant has already been separated from her minor children on a long ‑ term, and in the cases of C., D. and E. permanent, basis for reasons relating to her parenting ability rather than her potential surrender to Poland (see paragraphs 15-18 above). The applicant has not sought to explain why, despite these recent developments, her surrender would nonetheless lead to an interference with her right to respect for her family life.

32. In these circumstances, there is no evidence to suggest that the surrender of the applicant to Poland would result in a violation of her right to respect for her family life. The application is accordingly manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) and must be declared inadmissible pursuant to Article 35 § 4.

33. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President