Ture v District Court of Lisbon, Portugal

MR JUSTICE HOLROYDE: This is an appeal brought with permission against the order of District Judge Ikram delivered on 24 March 2016 that the appellant Mr Ture be extradited to Portugal to serve a sentence of 15 months of imprisonment. That sentence was imposed by the District Court in Lisbon for an offence on 16 June 2005 of possession with intent to supply of a quantity of cocaine and a small quantity of heroin. The crime of which he was convicted is classified in Portuguese criminal law as being a drug trafficking crime of minor importance, in contrast to the more serious form of the offence for which the law of that country provides. It is nonetheless an offence punishable with up to 5 years' imprisonment. It was a type of offence which Mr Ture had committed in Portugal before, and the court concluded that a significant sentence of 15 months' imprisonment was necessary.

The sole ground of appeal is that the District Judge made a wrong decision when he concluded that extradition would not be a disproportionate interference with the Article 8 rights of Mr Ture and his daughter, now aged 12, for whom he is the sole carer in this country. The child's mother returned to her native Guinea-Bissau several years ago and only has intermittent contact with the child by telephone.

Having read the papers it seems to me that the focus of the appeal will inevitably be on the position of the appellant's daughter, who through no fault of hers has led an unsettled life and has previously missed part of her education, but who is now well-settled at a school near to the home which she occupies with the father.

In an initial proof of evidence, Mr Ture stated that he had no idea who could look after his daughter if he were extradited and said that he dreaded the prospect that she may have to be taken into the care of the local authority. By the time of the hearing before the District Judge, however, he was positively advocating that his daughter if necessary could and should go to live with his mother, her grandmother, in Portugal. He gave evidence about a period of around 9 months to a year when his daughter had indeed previously lived in Portugal with her grandmother. That significant period of time in the child's life appears not to have been mentioned by him at all when he first made a statement expressing his bewilderment at who might look after her if he were extradited.

A report has been prepared by Hackney Borough Council Children's Services in which the position of the appellant's daughter was assessed. The report is dated 8 February 2016. It was prepared on the understanding that, if the appellant were to be extradited and imprisoned for a time in Portugal, his daughter could be cared for within the family network. That understanding was of course based on what the appellant was then saying about the willingness and ability of his mother to care for the child. Inevitably the expectation that the child could if necessary go to live with her grandmother was also a significant feature in the District Judge's decision.

Subsequent to the District Judge's decision, however, it has become the appellant's case that his mother could not in fact cope with the child coming to live with her. The appellant's mother is about 70 years old. She is said to be in poor health and with a limited command of either Portuguese or English. It is also said that she firmly intends to return to her native Guinea-Bissau in the very near future, there being no confidence at all that the surroundings in which she would there live could ever be a suitable home for the appellant's child.

Social Services attempted to make contact with the appellant's mother. This proved to be largely unsuccessful. The appellant's solicitor has managed to speak to her and reports that she has confirmed that she could not cope with caring for the child and wants to return to Guinea-Bissau.

The same topic is covered in a further statement from the appellant himself which Collins J has already held to be admissible in evidence in this appeal.

The difficulty which the court faces today is that its powers on appeal are limited to either allowing the appeal and discharging the extradition order or dismissing the appeal; there is no statutory power which would enable the court to set aside the order made below but remit the matter for a rehearing. Collins J has already ordered that some of the further evidence on which the appellant would wish to rely is admissible. Other evidence, the subject of an application which Ms O'Raghallaigh would have made had we reached that stage, might also be admissible. But whatever the admissibility of the evidence it seems to me there would be no opportunity for it to be examined in any detail through oral testimony and cross-examination.

Ms Bostock, on behalf of the respondent, understandably urges the court to give very careful scrutiny to the case now being advanced. It is the respondent's case that the appellant, having initially said one thing, is now saying the exact opposite for the purposes of an appeal against an order which is unwelcome to him.

I am very alive to that consideration. It seems to me, however, that it would be contrary to the interests of justice for the court to determine this appeal without further inquiry into what will in reality happen to the appellant's daughter if the court were to refuse his appeal and he were to be extradited to serve his sentence of imprisonment. As things stand, the court is faced with the prospect that if the appeal were dismissed the daughter might have to be taken into care. That might ultimately prove to be the best arrangement which could be made for her welfare if the appeal fails; but at the moment there is, in my judgment, an absence of sufficient information to enable the court properly to consider the Article 8 rights of the child as well as of her father. I emphasise that that is absolutely no fault of the Children's Services Department who, as I say, conducted their earlier assessment on the basis of information which was put forward then but is now said to be inaccurate.

I note in passing that the appellant is the father of a second child, a younger half sibling, who lives with his mother. There was a time when both children, the father of both and the mother of the younger child all lived together as a family unit. There is, so far as I can see, no evidence at all about whether the mother of the younger child has been contemplated as a potential carer for the daughter in the event of extradition.

I am very reluctant to delay proceedings which have already extended over some months, particularly when one of the issues to be considered in the appeal is the effect of what is said to be delay on the part of the Portuguese authorities. I am, however, satisfied if the court is to discharge its duty in treating the welfare of this dependant child as a primary consideration it is necessary to adjourn these proceedings and direct the Children's Services Department of Hackney Borough Council to prepare a further assessment pursuant to section 7 of the Children Act as to the arrangements which could be made for the child in the event of the appeal being dismissed.

It remains to be seen what the outcome of that assessment will be. It will however, I hope, bring a welcome element of objectivity to a difficult question which at present is entirely dependent upon the evidence of the appellant, who now seeks to put forward a case which is directly contradictory to the case he advanced below.

For those reasons this appeal must be adjourned. I will make a direction as to the preparation of the report. I will be grateful if counsel could consider the appropriate terms of the order. I am anxious to proceed with the matter as briskly as possible. Counsel should therefore consider the shortest reasonable period of time in which such a report could be prepared. I would wish, if possible, to include a direction in my order as to the date by which the report should be filed with the court and then to provide for skeleton arguments in relation to matters arising from that assessment.

The final matter to which I must refer is a submission by Ms O'Raghallaigh suggesting that if there is to be a section 7 assessment by the local authority the court should also give leave for the appellant's solicitors to obtain and file a child psychologist report. As matters stand at present I am very far from persuaded that such a report is necessary. If it is not necessary it would simply carry with it the risk of increasing the timetable of these proceedings. I therefore decline to give any such direction.

Ms O'Raghallaigh, Ms Bostock, would you please both liaise about the terms of an appropriate order and if necessary see whether any enquiry can be made of Hackney as to the likely timetable. I very much hope we can get the case back comfortably before the end of this term. But if you would be good enough to draw up a draft order and submit it to my clerk for my approval.

MS BOSTOCK: My Lord, yes. Just a brief matter from me, raised really because of your query about whether the mother of the younger child might be able to help. I wonder whether it might be appropriate for Social Services to attempt to contact the daughter in question's mother because they are in contact. Although the requested person says he does not have any contact, the daughter tells Social Services that she does speak to her mother on the telephone.

MR JUSTICE HOLROYDE: I should have made that clear, thank you for reminding me, Ms Bostock. The short ruling I have just given, of which this discussion is not a part, but the short ruling I have just given is given with a view to my directing that a transcript be prepared forthwith, so that that can be provided to the Social Services Department to assist them in knowing why the court is, from their point of view without any warning, suddenly requiring them to make a further assessment in this case. That being so, I have mentioned the fact that nobody has so far apparently considered the mother of the younger child; it will be a matter for Social Services what steps they wish to take in relation that.

Thank you both very much and I will see something in draft later on.