A recent article published in The Telegraph cast light on the case of Paul and Sandra Dunham, grandparents from Northampton who are currently embroiled in a battle to fight extradition to the US on charges of fraud and money laundering. Whilst their Article 8 arguments have been described as weak, the article’s author questions the successes of a series of other individuals, already convicted and imprisoned for serious offences in the UK, who have avoided extradition due to the impact it would have on their young families.

The case of HH v Deputy Prosecutor of the Italian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic, Genoa; F-K (FC) v Polish Judicial Authority [2012] UKSC 25 brought the extradition debate to the Supreme Court, where it was decided that the rights of any children involved should be considered an important factor, but not in cases where the public interest of extradition was considered to be paramount. In this case, only one of the three defendants (P-K) was successful, and that was due to the particular circumstances of her situation; namely that the offence was relatively minor, and she was a single parent to five young children. The other two defendants, who together were parents to three children, were not successful in their Article 8 argument. In his ratio, Lord Hope summarised that “when resistance to extradition is advanced… on the basis of the article 8 entitlements of dependent children… it should only be in very rare cases that extradition may properly be avoided.”

The crux of the matter here, and it is an issue which has caused a minor backbench rebellion, is that the courts have a discretion to look broadly at an individual’s circumstances in light of Article 8, and the welfare of any children has an important role to play in that analysis. A string of cases where the right to family life has successfully been argued led to a backlash in the Commons, especially in relation to individuals who had committed particularly serious crimes or whose family ties were not considered to be sufficiently ‘strong’ to engage the full force of Article 8. The result; an amendment to the Immigration Bill, now proposed by Dominic Raab MP, which has received cross-party support from political heavyweights such as David Blunkett and Hazel Blears. The amendment proposes that the judicial discretion is removed and placed in the hands of the Home Secretary, and that Article 8 should only succeed where extradition would “cause such manifest and overwhelming harm to … children that it overrides the public interest in removal”.

This move would signal somewhat of a backwards step, considering the recent removal of such a power in the context of the Home Secretary’s former ability to impose whole life sentences. In that situation, the European Court clearly set out its discomfort with a government minister being able to decide on matters which were fundamentally judicial in nature. Furthermore, if one examines the essence of what Dominic Raab et.al, and the Supreme Court justices are actually saying on the matter, it seems clear that they are not on such radically different pages as could easily be inferred from the former’s intention to strip the judiciary of their discretionary powers. Perhaps a more thorough discourse is required to cement Article 8’s role in extradition before the wheels of legislative reform are set in motion once again.