Divisional Court hands down key ruling on interaction of diplomatic immunity and child protection

The Divisional Court has rejected an application by a council concerned about the welfare of children of a diplomat for a declaration that the Vienna Convention on Diplomatic Relations (VCDR) breaches Articles 3 or 6 of the European Convention on Human Rights.

The material parts of the VCDR, done in 1961 and under which diplomats enjoy immunity or inviolability, were incorporated directly into UK law by s2 of the Diplomatic Privileges Act 1964 ('DPA'), as set out in Schedule 1 to the Act, unchanged from the text of the VCDR.

The London Borough of Barnet, as with other local authorities, has important powers and duties under Part V of the Children Act 1989 for the protection of children in its area. There is no express exclusion from its Part V remit of the children of diplomats.

The background to the case of London Borough of Barnet v AG & Ors [2021] EWHC 1253 (Fam) was that the council had “growing and serious” concerns in 2019 and continuing into 2020 about the welfare of the children of a diplomat and his wife.

The council was said to have taken such steps as it could to protect the children, but the range of steps, including those which would have been the most effective, could not be taken because of the immunity enjoyed by the diplomat, his wife and children.

An application for an interim care order came before Mostyn J in March 2020 who concluded that his hands were tied by the operation of s2 of the DPA. The interim care order could not be made when it otherwise would have been.

Mr Justice Mostyn found that the treatment which the children experienced at the hands of their parents reached the threshold which would have breached the children's rights under Article 3 ECHR.

“He, understandably, was deeply troubled by the consequences,” the President of the Family Division, Sir Andrew McFarlane, and Sir Duncan Ouseley, said.

Mostyn J saw one possible answer in a declaration of incompatibility between s2 DPA and Article 3 (freedom from torture and inhuman or degrading treatment) of the ECHR, under s4(2) of the Human Rights Act, 1998. He gave permission for such proceedings to be brought.

The specific declaration sought by the council was 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."

The Divisional Court concluded however that there was no breach of rights under the ECHR. The Family President and Sir Duncan also said that had they reached different conclusions, they would not have granted a declaration in the exercise of their discretion.