Hannah Whitehouse summarises two recent decisions by a High Court judge in relation to diplomatic immunity and public law children proceedings that are likely to be significant and have wide-reaching ramifications.
The judgments of Mr Justice Mostyn in A Local Authority v AG  WLR(D) 201,  EWFC 18 and A Local Authority v AG (No 2)  EWHC 1346 (Fam) grapple with the interplay between Part IV of the Children Act 1989 and the seemingly conflicting duties imposed by the Vienna Convention 1961 and the European Convention on Human Rights 1950.
Judgment one: stretching the boundary of legitimate interpretation
The first judgment was handed down on 16 March 2020, following a hearing held on 3 March 2020 (A Local Authority v AG  WLR(D) 201,  EWFC 18).
The facts concerned six children of a foreign diplomat serving at a diplomatic mission in the UK. The relevant local authority received several referrals in respect of the children. The referrals detailed physical chastisement and beatings at home at the hands of both parents. The children had been hit with belts, broken chair legs, and held up by their hair. One child even lost sight in her left eye following her father hitting her.
The local authority brought proceedings in January 2020 for child protection orders pursuant to Part IV Children Act 1989. The issue as to the immunity of the father, a serving diplomat, from civil proceedings arose. It was subsequently held that no emergency orders could be made until this issue was determined.
The case is interesting in that it is the first case to consider the clash between child protection and diplomatic immunity in English law. In fact, counsel in the case were only able to identify one other case in the world where this issue of law was considered. That had been in New York in 1988, where it was conceded that diplomatic immunity took precedence.
It was for this reason that in February 2020 Mostyn J gave leave to the Foreign and Commonwealth Office, the Department for Education, and the diplomatic mission to intervene. However, the Foreign and Commonwealth Office decided to reject this offer. The diplomatic mission, on the other hand, made known that they wished to seek authorisation for the foreign government to intervene. However, by 3 March 2020 there had been no response. Mostyn J found this regrettable as the Guardian in the case had made a formal invitation to that government to waive diplomatic immunity in respect of this family.
In his judgment of 16 March, Mostyn J referred to Lord Sumption’s historical review of diplomatic immunity in Reyes v Al-Malki & Anor  UKSC 61,  AC 735. Lord Sumption noted the careful scrutiny and drafting of the articles by United Nations member states. His Lordship noted that for the purposes of the civil case before him, the law protected diplomatic agents, and members of their familial household, from civil jurisdiction (articles 31(1) and 37(1) Vienna Convention 1961). These articles were subsequently incorporated into English law by the Diplomatic Privileges Act 1964. Lord Sumption also set out the relevant exceptions which dealt solely with money and property.
Regarding the permitted exceptions, both Miss Markham QC for the local authority and Professor Jo Delahunty QC for the children’s Guardian, submitted that a further exception could be read into the provisions. It was argued that pursuant to section 3 of the Human Rights Act 1998, the provisions could be interpreted to include an exemption for protecting children from harm.
Whilst Mostyn J expressed sympathy for this argument, he felt that it was a step too far. Following a consideration of Parliamentary intent during 1961 and 1964, it was decided that little regard would have been paid to child protection at the time. The focus had been on proprietary and monetary exceptions. Despite this, it was held that the state nonetheless had a duty pursuant to it obligations under the European Convention on Human Rights. Article 1 of the ECHR requires contracting states to secure everyone in their jurisdiction with the rights of the convention. Whilst article 3 provides that no-one shall be subjected to inhuman or degrading treatment. It was noted that Strasbourg had been at lengths to emphasise the importance of protecting children from such treatment. This has since been reinforced by the UN Convention on the Rights of the Child 1989, signed by both governments, with article 19(1) protecting children from all forms of physical or mental violence, injury, or abuse.
Discussion then turned to s.3 HRA 1998. It was observed that the only way the state could comply with its human rights’ obligations to protect these children was to read in the further exception. However, Mostyn J held that s.3 could not be used to re-write primary legislation to include words omitted by Parliament, whether knowingly or not. Mostyn J looked to other areas of family law for comparison. Whilst in surrogacy cases the court had interpreted legislation to alter the natural literal meaning of enacted words, Mostyn J held that there was a boundary of legitimate interpretation. It was in these cases which a declaration of incompatibility would be the only appropriate relief. The example given being parental orders (Re Z (A Child) (No 2)  EWHC 1191 (Fam),  3 WLR 1369).
Mostyn J took the view that the interpretation sought went beyond the legitimate boundary of interpretation for the following reasons:
(i) To do so would violate the plain, natural literal meaning of the words in article 31;
(ii) The Convention must mean the same thing in all the 191 states that have signed it, with the majority of those states not being signatories to the ECHR also;
(iii) The Convention relies on the principle of reciprocity – concern was given that child protection might be interpreted differently in other Convention states, using the example that British diplomatic teenage children were at risk for being allowed to consume alcohol or dress immodestly;
(iv) The principle of immunity for serving diplomats is an important tenet of civil and peaceful relations between states, and whilst that may be abused, that is a price that must be paid to protect the higher principle.
For these reasons, the argument put forward by the Guardian and local authority were rejected. Mostyn J noted that his conclusions lined up with the views of leading academic in this area, Professor Denza, whom has taken the view that immunity from civil jurisdiction also covers family matters, such as matrimonial proceedings and proceedings to protect a member of the diplomat’s family by way of a care order (Diplomatic Law, 4th ed (2016)).
At this point, proceedings were stayed; the matter could not yet be dismissed as there remained the outstanding request by the Guardian for the waiver of diplomatic immunity.
It was also noted in obiter that whilst relief pursuant to s. 4(2) HRA 1998 (declaration of incompatibility) was not sought, articles 31 and 37 of the 1961 Convention appeared incompatible with the state’s pursuant to articles 1 and 3 of the ECHR. Mostyn J however refused to consider the matter further as it was not an application before him.
Judgment two: the Salem principle
The matter came back for a second hearing on 18 May 2020, with the matter now being heard remotely via Zoom (A Local Authority v AG (No 2)  EWHC 1346 (Fam)). Due to subsequent events, the hearing focused on whether the local authority should be granted permission to pursue an application for declaration of incompatibility.
Since the March judgment the issue of diplomatic immunity had fallen away. Whilst the foreign government had rejected the Guardian’s invitation of waiver, the father was formally recalled with immediate effect. The family were then declared by the Secretary of State to be personae non gratae and were required to leave the UK at the first opportunity. However, it was held that until the family left the UK diplomatic immunity would continue. On 9 April 2020, the eldest children (both 18) left the family home and sought asylum in the UK, shortly followed by the next two children (17 and 14). On 18 April 2020, both parents and the youngest two children returned to their home country. On 20 April an interim care order was made in respect of the youngest remaining child (14). That child remained in foster care at the time of judgment.
Since diplomatic immunity was no longer in issue, the matter became purely academic. Therefore, it was for Mostyn J to decide whether the application could be pursued on “academic” grounds. On review of the authorities, despite initial resistance against academic claims, the House of Lords in R v Secretary of State for the Home Department ex p Salem  1 AC 450 had permitted such hearings in public law. The exception provided that the court should only allow such an application where there is a good reason in the public interest to do so. Lord Slynn in the case had provided an example of when such an exception should be adopted; a good reason in the public interest for hearing the application can only be shown if a large number of cases would be thereby affected.
Mostyn J however took the view that whilst there had not been many reported cases of a similar nature, if dealing with the academic issue protected one child from peril then that in and of itself would be a good reason.
It was argued by opposing counsel that if the application were to succeed then the implications of a declaration of incompatibility could be far reaching, especially in light of UK diplomatic relations. It was submitted that such a finding would place the UK out of line with the other 190 state signatories.
Nonetheless, Mostyn J concluded that permission for the application to proceed would be granted. The following reasons were given:
(i) Protection of children at risk is one of the first and foremost obligations of the state, both in domestic law and treaty obligations;
(ii) 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;
(iii) The cohort of the relevant children is not insignificant, with 23,000 people being protected by diplomatic immunity in this country currently;
(iv) The consequences of the claim, were it to succeed, are not relevant in determining whether it should be heard.
The judgments represent a key decision in respect of child protection, diplomatic immunity, and competing human rights’ obligations. The upshot of the initial judgment is that on a strict reading of the law diplomatic immunity precedes child protection. However, this creates a potential conflict with the state’s competing obligations pursuant to the ECHR and UNCRC. The granting of permission in the second judgment means that the court will now need to directly grapple with this incongruity. The outcome of which is likely to have wide reaching implications.
Jo Delahunty QC acted for the children.