A recently decided case has again raised the issue of the position of diplomats before the English family courts, this time in the context of apparent domestic violence to children and local authorities carrying out their statutory duty.
My colleague, David Hodson, had written previously about other attempts by diplomats to avoid justice before the English family courts and see his article entitled “Diplomatic immunity and other ways to avoid Family Court obligations” which can be found here.
The just reported case of A Local Authority v AG  EWFC 18 arose when a local authority sought a care order in respect of 3 of the 6 children of a diplomat from an unnamed country serving in London following reports of physical chastisement by one of the older siblings. The primary school attended by the two youngest children also made a safeguarding referral to the local authority after one of the children told a teacher that “I get hit with a thick belt everyday by my mum, but my dad is much worse”. The local authority sought an emergency protection order, which the court was unable to deal with until the issue of diplomatic immunity was resolved.
The Secretary of State invited the foreign government to waive the immunity of the father and his family from the civil jurisdiction of the English courts in respect of care proceedings to allow the family's participation and the local authority to seek and enforce care orders in respect of the children. The foreign government refused to waive the immunity but recalled the father with immediate effect, although departure initially would not occur until Covid-19 lockdown restrictions were lifted.
However in the meantime, on 2 April 2020, an elder son, D (18), sent an email to the local authority social worker attaching a photograph and a video of a bloody wound to the back of his head, which he explained was inflicted by his father with a shoe. 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 were ‘personae non gratae’ and were required to leave the UK at the first opportunity, namely 18 April 2020 via a chartered flight arranged for the purpose of bringing British nationals home from the foreign country.
On 9 April 2020, D and another child, E (18), left the family home and sought asylum. Two days later, two other children, N (17) and A (14), also left the family home and sought asylum. In light of the diplomatic immunity, the proceedings could not proceed and were stayed pending a decision by the government involved on whether to waive immunity or the British government to expel the diplomat and his family. A week later, the parents, together with the youngest two children, returned to their homeland on a repatriation flight. Mostyn J made a final care order in respect of A (14).
Mostyn J was asked to consider whether to grant permission for the local authority’s application for a declaration that the Diplomatic Privileges Act 1964 is incompatible with Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The application was supported by the Cafcass Guardian but opposed by the Secretary of State and the parents. The application if made would be purely academic as the diplomatic immunity in question had come to an end as the parents, together with two of the youngest children had returned to their homeland.
Mostyn J looked at the authorities and decided that it was appropriate in public law cases within the family law jurisdiction to deal with so-called academic questions namely where the dispute itself no longer needs to be adjudicated, relying on the principle arising from the House of Lords decision in R v Secretary of State for the Home Department ex p Salem  1 AC 450. Until this case, the law did not provide for academic claims to be heard and in the case of Salem, the House of Lords finally resolved this element by setting out an exception to this rule. Lord Slynn of Hadley stated there should be a discretion to hear academic claims where there is an issue involving a public authority regarding public law and thereby clarifying the earlier House of Lords decision in Sun Life Assurance Co. of Canada v Jervis  AC 111, 113-114; and Ainsbury v Millington  1 WLR 379, 381 should only be applied to decisions concerning private law rights between parties to a case. He warned that this discretion should be exercised with caution and that the only cases that should be heard are those where there are good reasons in the public interest for doing so, for example, where there is need for caselaw to provide an interpretation of a discrete point of law without the need for an analysis of the facts of a case, or where a large number of similar cases exist or are anticipated to arise in the near future. There is no doubt that we have been seeing a gradual increase of child protection cases before the courts over the past few years, where parents have diplomatic immunity and Mostyn J cites there are approximately 23,000 diplomats in this country.
Mostyn J concluded that there are good reasons in the public interest why the declaration of incompatibility application should be allowed to proceed.
First, he stated the protection of children at risk is one of “the first and foremost obligations of the organs of the state” engrained under both domestic law and under treaty obligation in the 1990 United Nations Convention on the Rights of the Child signed by both countries. In particular Article 19(1) states that “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child".
Secondly, he highlighted there are 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.
Thirdly, he stated there are approximately 23,000 people protected by diplomatic immunity in England which is potentially a significant number of children who could potentially be at risk of harm and require local authority intervention. But even if only a handful that would not be a good reason not to hear the claim.
Finally, Mostyn J concluded that “the consequences of the claim, were it to succeed, are not relevant in determining whether it should be heard”.
Mostyn J said that none of the stated exceptions to diplomatic immunity applied to this case. The case highlighted that Section 3 of the Human Rights Act 1998 requires the court, so far as it is possible to do so, to read and give effect to primary legislation in a way which is compatible with the Convention rights, namely Articles 1 and 3 of the 1953 European Convention on Human Rights and Article 19 of the 1990 United Nations Convention on the Rights of the Child which requires contracting states to ensure no one is subjected to inhuman or degrading treatment or punishment and all appropriate steps are taken to protect children from all forms of abuse. In light of this, arguments were advanced on behalf of the local authority and the children that Mostyn J should “interpret these provisions pursuant to section 3 of the Human Rights Act 1998 to ‘read in’ another exception, namely a public law application to protect children or vulnerable adults at risk within the diplomat's family forming part of his household” but he concluded it was a step too far for him to take. He said, “Section 3 of the Human Rights Act 1998 does not give the court an unfettered power to rewrite legislation to include words which Parliament has wittingly or unwittingly excluded”. He stated the court is limited to interpreting statute in natural and literal language.
Although the case has not yet changed the way in which courts deal with cases concerning diplomats, Mostyn J has highlighted a need for an amendment to the 1961 Vienna Convention on Diplomatic Relations to address the need for diplomatic immunity to be cast aside in cases of child abuse and, the author suggests, should go as far as to capture cases of domestic violence. Mostyn J accepted the argument made on behalf of the children that ’there are good reasons in the public interest why the declaration of incompatibility claim should be allowed to proceed’ and he therefore granted permission for this claim will be determined later in the year, subject to any appeal of the judgement. It will certainly be worthwhile to follow the progression of this case as it is likely to be step towards a change in the way in the law will provide blanket immunity to diplomats.
Embassies and consuls might be wise to proceed on the basis that diplomats should not expect to have immunity before the family courts in relation to the public law duties of local authorities in respect of protecting children from risk and harm. Thus far it is believed the country in question of the diplomat has not been made public. This can never be guaranteed especially with the perceptions of public condemnation of child abuse overriding privacy. It would therefore be against the best interests of a country and its diplomatic mission for diplomats to believe they would have immunity, in law or otherwise. The private lives, within families, of diplomats in England and Wales, as to domestic abuse of children or other family members remains a matter of much public concern to the law and public authorities with a duty to protect vulnerable people.