I came across this article by chance this afternoon. It concerns Eileen Clark, a US citizen who, said to have been faced with ill-treatment by her husband, came to the UK well over a decade ago with their 3 children; international child abduction proceedings were recently issued against her in the US and her extradition there was accordingly sought. The US proceedings are criminal ones – a civil action under the Hague Convention would have had to have been brought sooner.
The article draws quite heavily on this news release from Liberty, the well known ‘human rights’ organisation that brought this (further) High Court challenge against Ms Clark’s extradition. Two judges instead of the usual one judge were charged with deciding whether to grant Ms Clark permission to proceed with her judicial review; such permission would only be granted in the event that she had an ‘arguable’ claim. Ms Clark’s application for judicial review was refused in no uncertain terms and there is no suggestion that any attempt was made to appeal that decision to the Court of Appeal.
The most recent judgment can be read here; the hearing was conducted in May 2014, exactly 30 months to the day since my own son was taken. The latest and as it turned out final decision – Ms Clark boarded a plane at Heathrow yesterday – was in effect a re-run of earlier High Court proceedings in 2012, the outcome of which were also unfavourable to Ms Clark. This time, it was argued that the Home Office was wrong to maintain the decision to extradite in the light of a diagnosis of post traumatic stress disorder – attributable to claimed domestic abuse in the 1990s – that post-dates the earlier High Court proceedings. On the basis of this new evidence, it was argued by those representing Ms Clark that it was also open to her to re-open arguments previously rejected in terms of resisting her extradition more generally (those representing the Home Office surprisingly accepted that it was open to her to do so even though there was no satisfactory explanation as to why the diagnosis was not made sooner and, as such, why evidence of it was not made available at the earlier proceedings). These re-opened arguments centred on extradition being said to be an abuse of process on the part of the US authorities because of the delay in pursuing the matter.
The BBC here is not known for its impartiality at the best of times, even though it has a statutory obligation be remain impartial. It is often accused of favouring the political left in the UK and has more recently been accused of favouring the pro-union side in the upcoming Scottish independence referendum. The BBC’s coverage of this matter, as per the article flagged up at the beginning of this post, might be said to be a case in point. No doubt the prospect of extradition and criminal proceedings in the US will be a frightening and daunting prospect for Ms Clark; it would be for most people. Domestic abuse cannot, of course, be tolerated – although there is no suggestion that such abuse (often alleged in family cases) has been established in a criminal or civil court. Irrespective of this, however, child abduction cannot be tolerated either; the BBC article largely glosses over what Ms Clark stands accused of. She is made out to be the only victim; she might well be a victim but is not the only one.
The ages of the children in this case – at least one of them is now an adult and the others are almost adults – and the fact that their father and his family have already been deprived of any chance of sharing their childhood with them as their formative years have been spent in the UK actually mean that there is a greater public interest in prosecution as the damage cannot now be put right, it being too late to do so. It would seem that the children’s lives are now in the UK and they will no doubt soon be living independently if they are not already doing so. The passage of time aggravates the seriousness of what Ms Clark is to be tried for in the US. It is therefore arguably right that she accounts for her actions, all the more given the passage of time.
In relation to whether the passage of time, leaving aside these points, means that it can still be said that it is not in the public interest for Ms Clark to be extradited, as argued for her in the High Court, this view cannot not right in my opinion. First and foremost, let it not be forgotten that Ms Clark is an American national so there can be little rational objection to her being tried in the country of her own nationality. There have been a number of high profile and largely unsuccessful challenges in English courts against extradition to the US over the last few years; the common thread that seems to run through them is that UK-US extradition procedures are said to be skewed in favour of the US authorities – but these cases concerned Britons not Americans. Second of all, it is clear from the High Court judgment that Ms Clark was at least in part responsible for this delay: refer to paragraph 29 of the judgment. Third of all, there must be a public interest in discouraging this sort of conduct. In this regard, it is reassuring to see that the High Court stamped upon the argument, apparently and worrying deployed on her behalf, that what she stands accused of his somehow ‘trivial’ in nature. Paragraph 26 of the judgment reads as follows:
As to the matters relied on beyond the new diagnosis, we do not consider that the argument based on the asserted triviality of the offence carries any real weight. The removal of children from another jurisdiction without parental consent is a serious matter and recognised as such by our courts and foreign courts. The need for international cooperation is particularly strong. In this case the impact of the admitted removal of three children from the USA in 1998 continued over a number of years until each of them entered adulthood.
In the United States, the law is capable of catching up with those accused of international child abduction. Much more needs to be done there and elsewhere, however.