AG (A Child) - child protection and diplomatic immunity

The recent judgment of the Court of Appeal ([2022] EWCA Civ 1505) which concludes (at least for now) the AG litigation. Previously, judgments were given by Mr Justice Mostyn. The first such judgment stayed public law care proceedings that had been brought by the Local Authority (the London Borough of Barnet) because the father had diplomatic immunity ([2020] EWFC 18). Thereafter, the father and his dependent family members were required to leave the UK. The Local Authority sought to pursue an application for a declaration of incompatibility. Mostyn J gave permission for that application to proceed ([2020] EWHC 1346 (Fam)). The application for a declaration of incompatibility was heard and refused by the Divisional Court - The President of the Family Division and Sir Duncan Ouseley ([2021] EWHC 1253 (Fam)). The Local Authority appealed leading to the decision summarised here.

Background / the first judgment ([2020] EWHC 18)

The proceedings concerned 6 children, S (5), G (9), A (14), N (17), E(18) and D (18). The younger children were the subject of a safeguarding referral in November 2019, which resulted in the LA undertaking an investigation under S47 Children Act 1989. The first judgment given by Mostyn J identifies (at para. 3) that referral as having been made by E, who expressed concern that her siblings (particularly D) were physically chastised at home by the father and the mother. The parents refused to agree to the LA speaking to children whether at home or at school and objected to the school being asked to provide further information, relying upon their diplomatic immunity. At that stage, the school had no concerns and no allegation had been made that any of the children were injured. As a result, no further action was taken.

A second referral was then received on 16 January 2020, this time from the school which S and G attended. The first judgment details how, during a lesson within which the children were asked to define the word ‘lashing’, G said that they were “…hit with a thick belt every day by my Mum, but my Dad is must worse” (at para. 4). G subsequently repeated that allegation to a Social Worker.

The Local Authority were told by the Metropolitan Police that the diplomatic immunity that the father had prevented it from undertaking an investigation.

The LA undertook a further S47 investigation, during the course of which they spoke to the four younger children at school and to E separately. The children made allegations which substantiated concerns that they had suffered and were at risk of continuing to suffer significant physical and emotional harm as a consequence of the care provided to them by their parents, including excessively harsh and very severe discipline and punishment which the Court of Appeal described as being “well beyond the point of cruelty… sometimes requiring medical treatment for both children”. Some of the details, which show extremely serious physical abuse, are set out within the first judgment at paras. 7 - 9. The parents denied hitting the children and claimed their diplomatic immunity prevented information being placed before the Family Court.

On 21 January 2020, the LA applied to the Family Court in Barnet for an EPO. The Family Court in Barnet made no order, but transferred the care to Mostyn J, who first heard the case on 22 January 2020. He said, within the first judgment, that “…the question of the immunity of the father and of members of his family forming his household from civil proceedings needed to be examined carefully. Until that issue had been determined no emergency orders could be made.” (at para. 10). A hearing was fixed for 3 March to consider the question of immunity. The papers were disclosed to the Foreign and Commonwealth Office.

On 23 January, E informed the SW that her father had said she would pay for what she had done. She, N and A were woken by their parents at 4 a.m. on that day, who told them to withdraw their allegations. On 24 January, the children sent an email to the SW containing information about their lives at home in which they said they wanted to stay living with their parents, and did not want any court case brought against them. Further letters were sent by E and D after that saying that life at home was peaceful and and that their parents take good care of them. A told the LA that she had written the letter because she was worried about her father losing his job.

On 21 February, D confirmed the allegations made by his siblings. He said that the father hit them, shouted at them and verbally abused them. He said that in 2019, the father had hit him with the wooden leg of a broken chair, and that the father had picked S up by her hair and hit her so hard that it was as though he was hitting an adult.

At a home visit on 28 February, the father denied hitting the children and said that E and D had coerced the other children into making allegations so that the father would agree to E remaining in the UK. They refused to sign working together agreements.

Mostyn J described the issue as follows, at para. 22 of his first judgment:

“This case gives rise to a seemingly irreconcilable clash between two international treaties incorporated into our domestic law by statutes. These are the 1961 Vienna Convention on Diplomatic Relations, enacted by the Diplomatic Privileges Act 1964, and the 1953 European Convention on Human Rights, enacted by the Human Rights Act 1998. This is the first case in this country concerning a serving diplomat (as opposed to a former diplomat or a member of a mission's staff) where the issue has had to be considered. Indeed, the researches of counsel have only identified one other case anywhere in the world where the immunity of a serving diplomat from child protection proceedings has been considered. That was in New York in 1988, but in that case the supremacy of diplomatic immunity over local child protection laws was conceded (In the Matter of Terrence K (1988) 524 N.Y.S.2d 996).”

Mostyn J drew a history of the rule of diplomatic immunity and the evolution of the 1961 Vienna Convention on Diplomatic Relations from the judgment of Lord Sumption in Reyes v Al-Malki & Anor [2017] UKSC 61, as follows:

“26. Lord Sumption explained how the concept of diplomatic immunity stretches back to Roman times, with texts dating from the second century referring to it. Indeed, the first preamble to the 1961 Convention recalls that peoples of all nations from ancient times have recognised the status of diplomatic agents. In this country, as Lord Sumption explained, the concept of diplomatic immunity was first put on a statutory footing by the Diplomatic Privileges Act 1704 following the arrest for debt in the street of the Russian ambassador, who was returning in his coach from an audience with Queen Anne. Plainly, the potential offence caused to Tsar Peter the Great was extremely worrying. Therefore, the preamble to the 1704 Act states:

"Whereas several turbulent and disorderly persons having in a most outrageous manner insulted the person of his excellency Andrew Artemonowitz Mattueoff, ambassador extraordinary of his Czarish Majesty, Emperor of Great Russia, her Majesty's good friend and ally, by arresting him, and taking him by violence out of his coach in the publick street, and detaining him in custody for several hours, in contempt of the protection granted by her Majesty, contrary to the law of nations, and in prejudice of the rights and privileges which ambassadors and other publick ministers, authorized and received as such, have at all times been thereby possessed of, and ought to be kept sacred and inviolable."

And the third section stated:

"And to prevent the like insolencies for the future, be it further declared by the authority aforesaid, That all writes and processes that shall at any time hereafter be sued forth or prosecuted, whereby the person of any ambassador, or other publick minister of any foreign prince or state, authorized and received as such by her Majesty, her heirs or successors, or the domestick, or domestick servant of any such ambassador, or other publick minister, may be arrested or imprisoned, or his or their goods or chattels may be distrained, seized, or attached, shall be deemed and adjudged to be utterly null and void to all intents, constructions, and purposes whatsoever."

The strength of the language used illustrates the importance of preserving a principle that was regarded as sacred and inviolable. I do not think that 316 years later it has become any less sacred and inviolable.

27. This Act was repealed and replaced by the 1964 Act. This incorporated the relevant parts of the 1961 Convention. Lord Sumption explains at [6]:

"The text was the result of an intensive process of research, consultation and deliberation extending from 1954 to 1961. Draft articles were submitted to the governments of every member state of the United Nations and were subject to detailed review and comment. Eighty-one states participated in the final conference at Vienna in March and April 1961 which preceded the adoption of the final text. Since its adoption, it has been ratified by 191 states, being every state in the world bar four …"

28. For the purposes of this civil case the relevant provisions are articles 31(1) and 37(1). Conflating these, they provide that:

"A diplomatic agent, and members of his family forming part of his household, shall enjoy immunity from the civil jurisdiction of the receiving state except in the case of (a) a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; or (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions."

The Local Authority asked Mostyn J at that stage to ‘read in’ a further exception pursuant to S3 Human Rights Act 1998, specifically “a public law application to protect children or vulnerable adults at risk within the diplomat’s family forming part of his household” (para. 29). Mostyn J declined, describing that as “…a step too far for me to take” (para. 30). He addresses the argument as developed before him at paras. 31 - 37. At para. 38, he sets out his conclusion that “…the innovation proposed in this case passes well beyond the boundary of interpretation” because:

i) It violates the plain, natural literal meaning of the words in article 31. The exceptions were framed after considerable debate and were obviously intended to be a finite list. The principle of construction inclusio unius exclusio alterius means that a construer cannot infer an additional tacit exception based on safeguarding children at risk.

ii) The Convention must mean the same thing in all the 191 states that have signed it. The majority of these will not have subscribed to the European Convention. That majority would no doubt find it most surprising that there existed a tacit exception based on safeguarding children at risk. For the Convention to work as intended there must be global uniformity as to what it means.

iii) The foundation of the Convention is the idea of reciprocity. As Lord Sumption says at [12(3)], a significant purpose of conferring diplomatic immunity on foreign diplomatic personnel in Britain is to ensure that British diplomatic personnel overseas enjoy corresponding immunities. If a tacit exception based on safeguarding the children of diplomats were to be excavated it would not be difficult to imagine another state, a theocracy for example, claiming that the teenage children of British diplomats were at risk because their parents allowed them to drink alcohol or to dress immodestly.

iv) The principle of immunity for serving diplomats and their families is one of the most important tenets of civilised and peaceable relations between nation states. It may be abused, but that is a price that must be paid in order to uphold the higher principle. As Lord Sumption says at [7]:

"Nor do I doubt that diplomatic immunity can be abused and may have been abused in this case. A judge can properly regret that it has the effect of putting severe practical obstacles in the way of a claimant's pursuit of justice, for what may be truly wicked conduct. But he cannot allow his regret to whittle away an immunity sanctioned by a fundamental principle of national and international law."

In reaching that conclusion, Mostyn J differed from the obiter views that had been expressed first by Dame Elizabeth Butler-Sloss in Re B (A Child) Care Proceedings: Diplomatic Immunity) [2003] Fam 16, and then by Mrs Justice Knowles in A Local Authority v X [2018] EWHC 874 (Fam). Re B involved different circumstances, as the parent concerned was employed by a driver at his country’s embassy. He therefore enjoyed limited immunity which did not extent to “acts performed outside the court of their duties”. Butler-Sloss, P, considered that the father’s actions ell outside the course of his duties, and there was therefore jurisdiction to make a care order. She went on, at para. 38 of her judgment, to express the view that where a child’s Article 3 Convention rights had been breached, it is necessary for a court to interpret the Diplomatic Privileges Act 1964 in a way that allows the court, as a public authority, to take steps to protect children against violations of their fundamental rights.

At para. 40 of her judgment in A Local Authority v X, Knowles J expressly agreed with that analysis.

As a consequence of that conclusion, Mostyn J stayed the care proceedings. At the conclusion of his first judgment, he included the following:

“48. First, it is open in a case such as this for a Local Authority to write to the Foreign & Commonwealth Office drawing the facts to the attention of the Secretary of State and inviting him to take such diplomatic steps as may be necessary. Second, it is open to the Secretary of State for Foreign & Commonwealth Affairs, on receipt of that information, to seek to persuade the foreign government to waive diplomatic immunity in respect of the diplomat and his family so that the necessary protective measures can be taken. Third, as a last resort, it is open to the British government to expel the diplomat and his family so that on their return to their homeland protective measures can be taken in respect of the children there.

49. Finally, I refer to the remedy of a declaration of incompatibility pursuant to section 4(2) of the Human Rights Act 1998. This relief was not sought by the Local Authority in its application. It was too late for that relief to be sought at the hearing before me since the requisite 21-day period of notice to the Crown prescribed by FPR 29.5 had not been given. It will be apparent from what I have written above that I am of the view that inasmuch as articles 31 and 37 of the Convention prevent protective measures being taken in respect of the children of diplomats who are at risk then they are irreconcilable, and therefore incompatible, with the duties imposed on the state under articles 1 and 3 of the European Convention on Human Rights. They are probably incompatible with the rights under articles 6 and 8 also. However, as the application was not formally before me and as I heard no specific argument about this form of relief, I will say no more about this beyond observing that such a declaration would likely be no more than symbolic given that the British government would not be in a position unilaterally to amend the terms of the Convention.”

Permission to pursue declaration of incompatibility / the second judgment ([2020] EWHC 1357)

Mostyn J begins the second judgment by referring back to the first:

“At paragraph 49 of my first judgment I referred to the potential remedy of a declaration of incompatibility pursuant to section 4(2) of the Human Rights Act 1998. That remedy had not by then been sought by the local authority. I expressed some very provisional views on the question of incompatibility but explained that they could hardly be regarded as definitive given that I had heard no argument on the subject.”

Subsequent developments (summarised below) had rendered the issue academic. As such, the parties invited Mostyn J to conduct a form of ‘permission hearing’ to decide whether any application for a declaration of incompatibility (not made at the time of the hearing) should advance to a substantive hearing.

By that hearing, the Secretary of State for Foreign and Commonwealth Affairs had been granted permission to intervene.

The developments between the first and second judgments were as follows:

“The relevant facts leading to this state of affairs are as follows:

i) On 19 March 2020 the Secretary of State invited the foreign government to waive the immunity of the father and his family from the civil jurisdiction of the UK courts in respect of proceedings under Part IV of the Children Act 1989 both to allow the family's participation and to allow the local authority to seek and enforce care orders in respect of the children.

ii) On 27 March 2020 the foreign government stated to the Foreign & Commonwealth Office that it refused to waive the immunity of the father and his family but had formally recalled the father with immediate effect (albeit that the family's departure would not occur until lockdown was lifted).

iii) Although conditions in the home initially improved following my first judgment things seriously deteriorated after a short time. On 2 April 2020 D (18) sent an email to the local authority social worker attaching a photograph of a bloody wound to the back of his head. He explained that his father inflicted this with a shoe. He sent a further email attaching a video of the wound. In that video an adult can be heard shouting in the background.

iv) On 6 April 2020 the Secretary of State informed the foreign government that, in accordance with article 9(1) of the Vienna Convention on Diplomatic Relations ("VCDR"), the father and his dependent family members (including the mother and all of their six children) were personae non gratae and were required to leave the UK at the first opportunity. That first opportunity was on 18 April 2020 via the outbound leg of a charter flight arranged for the purpose of bringing British nationals home from the foreign country.

v) On 7 April 2020 the local authority social worker was able to speak to D who said that it was horrible living at home with his parents as they are both verbally and physically abusive; that he had decided to leave the home soon with his sister E; and that they planned to seek asylum.

vi) On 8 April 2020 I transferred the care proceedings and the claim for a declaration of incompatibility to the High Court and joined the Secretary of State as a party to the proceedings.

vii) On 9 April 2020 D and E (18) left the family home and sought asylum.

viii) On 11 April 2020 N (17) and A (14) also left the family home and sought asylum.

ix) On 14 April 2020 I held that by virtue of article 9(2) of the VCDR the family was to be given a reasonable period of time to leave the country; that period had not yet elapsed; and that accordingly diplomatic immunity continued to endure.

x) On 16 April 2020 a certificate pursuant to section 4 of the Diplomatic Privileges Act 1964 was issued by the Foreign & Commonwealth Office recording the diplomatic exchanges mentioned above.

xi) On 18 April 2020 the parents, together with G (9) and S (5), returned to their homeland on a repatriation flight.

xii) On 20 April 2020 I made an interim care order in respect of A and gave directions for the hearing of the permission issue.

xiii) On 18 May 2020 I heard the permission issue and reserved judgment. I granted the local authority permission to withdraw the care proceedings in respect of G and S. I gave directions for the final disposal of the care proceedings in respect of A.”

Accordingly:

• E and D had left the family home and sought asylum in the UK

• Subsequently, N and A also left the family home and sought asylum;

• The parents had left England for their home country, together with G and S

• The Local Authority had been given permission to withdraw their application in relation to G and S

• A final order was made in relation to A

Beyond that, the judgment focuses upon the question of whether any application for a declaration of incompatibility should be allowed to proceed, in circumstances where it had become academic because the parents had left and final determinations had been reached in relation to each subject child.

Mostyn J decided to allow the claim to proceed, because:

“i) The subject matter is of the utmost importance. The protection of children at risk is one of the first and foremost obligations of the organs of the state. This obligation is not merely a feature of domestic law. It is a treaty obligation of this country under the 1990 United Nations Convention on the Rights of the Child.

ii) As explained in my first judgment, there are now conflicting authorities at High Court level as to whether the Diplomatic Privileges Act 1964 prevents local authorities from exercising its powers and duties under Part IV of the Children Act 1989 in respect of the children of serving diplomats.

iii) The cohort of such children is not insignificant. There are about 23,000 people protected by diplomatic immunity in this country. That will include many children. But even if it were only a handful that would not be a good reason not to hear the claim.

iv) The consequences of the claim, were it to succeed, are not relevant in determining whether it should be heard.”

The substantive application for a declaration of incompatibility - [2021] EWHC 1253 (Fam)

The LA’s substantive application came before the divisional court (Sir Andrew McFarlane, P, and Sir Duncan Ouseley) on 2 and 3 March 2021.

The declaration sought by the LA is set out at para. 5 of the judgment, as follows:

“That to the extent the operation of s2(1) of the Diplomatic Privileges Act 1964 (DPA) and Articles 29, 30 (1), 31(1) and 37(1) and (2) of Schedule 1 to the DPA: (i) prevents a court from hearing and deciding an application for protective measures to be taken in respect of the children of members of a diplomatic mission where these children are suffering or at risk of suffering significant harm, and /or(ii) prevents a number of authorities -including local authorities and the police- from acting, pursuant to ss.17, 31, 38, 43, 46 and 47 of the Children Act 1989 and s.11 of the Children Act 2004, to safeguard the children of members of a diplomatic mission where these children are suffering or at risk of suffering significant harm, then these provisions of the DPA are incompatible with Articles 1, 3 and 6 of the European Convention on Human Rights."

Having set out the history (largely as above) the court addressed evidence given by the LA, through their Head of Service for the Duty and Assessment Service and the Intervention and Planning Service of the London Borough of Barnet. Her evidence was that, in the last six years, the LA had been involved with 8 families with diplomatic immunity where safeguarding concerns had been raised. In some of those cases, the LA had been able to work effectively with the families however that was not always the case, nor was that so in all serious cases. She explained that the police were also limited in the powers that they could exercise.

The LA had been reminded in this case (described above) that they could not interview the children and other family members without a waiver of immuntiy from the sending state. They had sought such a waiver, but the FCO had not applied as swiftly as the urgent circumstances of child protection required.

Further evidence from the LA’s Executive Director of Children and Family Services explained that the child protection duties held by LA’s in relation to children were no different in relation to the children of diplomats or those with diplomatic immunity. He identified particular powers as being curtailed by diplomatic status (set out by the court within its judgment at para 35 as follows):

“Assessment was the starting point for the child protection process. He questioned whether the FCO was right to advise that a social worker could not speak to the children, without a waiver of immunity; he regarded this as rather a one-off stance, as the FCO in the present case had actively encouraged the local authority to speak to the family to try to resolve its concerns. Second, the duty to protect could involve physical removal of the child from their residence, pursuant to a court order if the parents did not consent; but for a diplomat, there would be immunity from a court order, and the police could not use s46. Asking a state to waive immunity was intrinsically too slow for emergencies. LBB did not have high rates of children in need of protection, but it had 228 houses exempt from council tax on the grounds of diplomatic immunity. He was increasingly aware of children who were in need of protection but were left without it because they were members of a diplomat's household. Clarity in their position was required.”

At para. 36 - 44, the court set out the relevant provisions of the Vienna Convention on Diplomatic Relations.

At para 46 - 48, the court set out some relevant parts of the judgment in Al-Malki v Reyes.

The court then addressed the Human Rights Act 1998 and ECHR (at paras 57 - 62), the Vienna Convention (paras 63 - 67) and the UNCRC (paras 68 - 78). The court then goes on to examine the arguments advanced by each party, before expressing its conclusions beginning at para. 79. That begins with an important acceptance on behalf of the SSFCO, which was that in the absence of a waiver of immunity, diplomatic immunity served to prevent the LA and the court from taking steps under the children act which it otherwise would have done. In the instant case, that included the making of an EPO and an ICO. In due course, that might have included full care orders and other steps consequential upon the making of such an order.

The issue that arose was whether the material provisions of the Diplomatic Privileges Act 1964 (‘DPA’) were incompatible with Art 3 of the ECHR. That involved consideration of ECtHR case law pursuant to which Arts 1 and 3 ECHR had been interpreted as encompassing a “positive” obligation on states to secure those rights and to make them fully effective (para. 84). The court found, however, that there was no conflict between the ECHR and DPA / Vienna Convention, as set out at para. 98., as follows:

“In the light of that analysis, it is our judgment that there is no conflict between the ECHR and DPA/VCDR. The ECtHR jurisprudence requirement for a legal system to be in place to protect children through legislation, investigation and then the taking of other measures, cannot be read as also requiring the UK and the other Council of Europe Member States, all parties to the VCDR, to adopt a system which would require them to breach the VCDR towards each other and to other states. The ECHR does not require that in its text, and there is no jurisprudence which requires the Contracting Parties to breach the VCDR in order to avoid a breach of the ECHR. … That is because the ECtHR could not contemplate requiring a breach of an international Convention in order that its obligations be met, let alone a Convention of global reach, well beyond the regional concerns of the ECHR. …”

The suggestion that the DPA should be ‘read down’ is described as not having been “seriously pursued” (para. 120).

The appeal - [2022] EWCA Civ 1505

The child, A, sought permission to appeal the decision of the Divisional Court. The LA supported the appeal. The core contention advanced on appeal is summarised at paras. 5 - 9, as follows:

“5. AG, supported by Barnet, challenges this reasoning. They contend that article 3 includes a systems duty on the state to take effective measures to prevent private acts of torture, inhuman or degrading treatment or punishment. In Z v. United Kingdom (2002) 34 EHRR 3, the ECtHR said at [73] that article 3 enshrined "one of the most fundamental values of democratic society", and that "[t]hese measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge". Effective deterrence was required (see A v. United Kingdom (1998) 27 EHRR 611 at [22]). AG complains also about the suggestion that the ECHR expressed only regional concerns. This did not form a central plank of AG's oral argument.

6. AG submitted that the systems obligation was absolute, but not unfettered. It was an obligation to establish a framework of laws, precautions, procedures and means of enforcement which would protect children from such conduct to the greatest extent reasonably practicable (c.f. Lord Bingham at [2] in R (Middleton) v. West Somerset Coroner [2004] 2 AC 182). Ultimately this formulation seems to have been largely common ground (see also article 2 of the unincorporated UN Convention against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (UNCAT) providing for states to take effective measures to prevent torture).

7. AG accepted also that the ECtHR was required under article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), in interpreting the ECHR, to take account of "any relevant rules of international law applicable in the relations between the parties". The ECHR should, therefore, so far as possible, be interpreted in harmony with other treaties (see Al-Adsani v. United Kingdom (2002) 34 EHRR 11 (Al-Adsani) at [55], Demir v. Turkey (2009) 48 EHRR 54 at [67] and Al-Dulimi v. Switzerland (2016) (5809/08) (Al-Dulimi) at [134]).

8. In essence, AG argued that, in this case, it was simply not possible to interpret article 3 in harmony with the DPA and the VCDR. The ECtHR would seek to produce alignment between treaties, but would not engage in a harmonising process of interpretation (i) if that would impair the very essence of the convention right (Al-Adsani at [52]-[53]), or (ii) if it would prevent the ECtHR from performing its duty in full (X v. Latvia (2014) 59 EHRR 3 (X v. Latvia) at [94]). Moreover, when looking to interpret other rules of international law, the ECtHR would ask whether they were consonant with the ECHR (Al-Dulimi at [139] and Matthews v. United Kingdom (1999) 28 EHRR 361 (Matthews)). Accordingly, the ECtHR would give precedence to article 3 of the ECHR which was jus cogens (as the ICJ explained in Belgium v. Senegal 20 July 2012 at [99]: "the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)"). This was a "clean slate" case where there was no previous ECtHR authority (just like Rabone v. Pennine Care NHS Trust [2012] 2 AC 72 (Rabone), [19] and [119]). The ECtHR would give primacy to article 3, read together with the principles of non-refoulement in article 3(1) of UNCAT and the primacy of the best interests of children provided for by article 3(1) of the UN Convention on the Rights of the Child ('UNCRC'). AG did, however, acknowledge that the UNCRC was not incorporated into English law and could not, therefore, be given direct effect.

9. Ultimately, therefore, AG submitted that the UK's inability to provide effective protection for AG and the siblings when to do so, using the powers available under the Children Act 1989, would have been reasonably practicable, meant, as Mostyn J had suggested in his judgment of 16 March 2020 at [49], that articles 1 and 3 of the ECHR on the one hand and section 2 of the DPA and articles 31 and 37 of the VCDR on the other, were irreconcilably in conflict.”

The Secretary of State’s response is summarised thereafter:

“10. Conversely, the SSFCDA submitted that the DPA and the VCDR codified one of the oldest principles of customary international law. The Divisional Court made that clear by quoting extensively from the judgments in Al-Malki v. Reyes (SSFCDA intervening) [2017] UKSC 61, [2019] AC 735 (Reyes) (see also Basfar v. Wong [2022] UKSC 20, [2022] 3 WLR 208 (Wong) at [16]-[18]). The VCDR is the cornerstone of international relations and has withstood the test of centuries. It is intended to protect diplomats against the most serious of charges, and it operates reciprocally to protect diplomats from all countries both between democratic states and states where there is less mutual trust. The UK cannot unilaterally change the provisions of the VCDR, and there have in fact never been any amendments to it. The VCDR provides its own remedies, within its terms, for the situation in which diplomats break the laws of the receiving state. For example, the sending state may voluntarily waive immunity, the receiving state may declare a diplomat to be persona non grata, and, in an extreme case, the receiving state may require the mission to be scaled back or closed. The VCDR provides a clear and well understood international framework for the exchange of diplomatic missions between 192 contracting states. At [49]-[56], the Divisional Court had set out the risks to the safety of the UK's diplomats if the VCDR were not adhered to, as had been explained in the detailed evidence of Ms Alison Macmillan MVO, deputy director of the protocol directorate at the FCDO.

11. In essence, the SSFCDA submitted that there was no case in which the ECtHR had decided that article 3 was either incompatible with or should be held to outweigh the VCDR. The principles established by Lord Bingham in R (Ullah) v. Special Adjudicator [2004] 2 AC 323 had been endorsed at the highest level and repeated recently in Lord Reed's judgment in R (AB) v. Secretary of State for Justice [2022] AC 487 (AB) at [50]-[60]. The ECtHR, but not the domestic courts, could develop its jurisprudence beyond existing case-law. The task of the domestic courts was to keep pace with ECtHR jurisprudence, neither more nor less. They should not go further than they could be fully confident that the ECtHR would go (see [57] of AB). The domestic court could and should, where possible, anticipate how the ECtHR would decide the case on the basis of established principles (see [59] of AB). It was not, however, open to the domestic court, under the Human Rights Act 1998 (HRA), to decide an appeal on the basis of principles which ought now to be adopted in the light of a body of material concerned with other international instruments (see [60] of AB).

12. In these circumstances, the SSFCDA submitted that this court must, in effect, bite the bullet. The court had to decide, as the Divisional Court had effectively done, that it was not reasonably practicable to apply the precautions, procedures and means of enforcement, which would have protected AG from harm, to the children of diplomats covered by the DPA and VCDR. The repercussions would be too serious. The methods available to protect the children of diplomats were not perfect, but were the best that could reasonably practicably be achieved. Those methods were those provided for within the VCDR itself and by the other consensual processes. There was, in the circumstances, no incompatibility that could or should be made the subject of a declaration under section 4(2) of the HRA.”

The Court of Appeal accepted the SoS’s arguments, and dismissed the appeal for all of the reasons that follow in the judgment.

Analysis

This is plainly an extraordinarily difficult case. The harm that the children experienced was extremely serious. Of the six children of the household, the best efforts of the LA and of the courts were only able to protect four of them, and then only after the passage of considerable time during the course of which the father and mother were required to leave the UK. Of course, it is not known what has happened since. Have S and G been protected in their home country? Or do they remain with these parents who have been so abusive? Are they permitted any contact at all with A, N, E and D? Or are those relationships now permanently severed? What placements were found for the older children? All of this remains unknown.

The Court of Appeal appears to have accepted that the alternative ways of protecting children where the parents enjoy diplomatic immunity were inadequate. At para. 60 of its judgment, the Court of Appeal disagreed with the divisional court that those alternative methods were “adequate to protect the children of diplomats in situations of this kind” and accepted that they were “plainly less effective than would have been the case if the coercive powers of the court under the Children Act 1989 had been available…”. That having been said, however, the Court of Appeal appears to have accepted that the alternative of breaching the Vienna Convention would be worse and that there is no duty to seek amendments to the Vienna Convention, on the basis that it would not be reasonably practicable.

As said above, that therefore brings the matter to an end, at least unless any further appeal is attempted. Whilst cases where LA’s have to bring child protection investigations into the children of diplomats must be rare, it is nonetheless important that these limitations are known due to the different contexts in which they might arise.