A trial should be held on the “virtually insoluble dilemma” between diplomatic immunity and local authorities’ child protection duties, Mr Justice Mostyn has ruled in the High Court Family Division.
In A Local Authority v AG (No. 2)  EWHC 1346 (Fam) the judge said that despite the action having become academic - as the diplomat concerned has returned to his own country - the unnamed local authority involved had made an application for a declaration that the Diplomatic Privileges Act 1964 is incompatible with (at least) article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.
In the original case heard in March, Mostyn J said he had found a “virtually insoluble dilemma” and called for an amendment to the 1961 Vienna Convention on Diplomatic Relations to cover child protection.
He said then: “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.”
The diplomat had been based in London and had six children, one of whom contacted a local authority to say they were being physically chastised at home and two of whom were referred by a teacher to the local authority.
Since then four of the children had sought asylum and two had returned with their parents.
The Foreign & Commonwealth Office had declared the diplomat personae non gratae and required him to leave the UK.
Because the diplomatic immunity had ended with his departure, the FCO argued the case had become academic.
But Mostyn J said: “That does not seem to me to be a good reason in the public interest not to hear the claim.
“If the claim succeeds it may leave the Government and Parliament in a dilemma, the resolution of which might only be capable of being achieved by providing for an amendment to the Human Rights Act 1998 which excepts its reach to the children of serving diplomats.”
He said there were good reasons in the public interest why the declaration of incompatibility application should be allowed to proceed.
This was because it concerned the protection of children at risk - which he called “one of the first and foremost obligations of the organs of the state” - and because there were conflicting authorities at High Court level as to whether the Diplomatic Privileges Act 1964 prevents local authorities from exercising powers and duties under Part IV of the Children Act 1989 for the children of serving diplomats.
Mostyn J concluded: “The consequences of the claim, were it to succeed, are not relevant in determining whether it should be heard.”
4PB Chambers, which acted for the children in the case, said: “In a decision that is significant in providing a route to the resolution of the question of diplomatic immunity in child protection proceedings, and more broadly in its consideration of the circumstances in which ‘academic’ claims for declarations of incompatibility can be heard, Mostyn J accepted the argument advanced 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’.
“Subject to any appeal, the claim will now proceed to be determined later in the year.”