Re AG (a child) (diplomatic immunity)
| Jurisdiction | England & Wales |
| Judge | SIR GEOFFREY VOS MR,MOYLAN,BAKER LJJ |
| Judgment Date | 18 November 2022 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Diplomatic immunity – Human rights – Excessively harsh discipline by diplomat and wife – Whether inability to use normal powers under Children Act 1989 meant a conflict between ECHR and the diplomatic immunity elements of the Diplomatic Privileges Act 1964 and the Vienna Convention on Diplomatic Relations 1961.
There were six children in the family; the father was an accredited diplomat from a foreign state, based in London. The local authority received a safeguarding referral in 2019, relating to the children. The parents relied on their diplomatic immunity to refuse to allow the children’s schools to provide the authority with any information or to allow the authority to speak to the children. In January 2020, the authority received a second safeguarding referral from the school attended by the two youngest children and this led to the authority speaking to five of the six children. All complained, in effect, that the parents used excessively harsh discipline and punishment, well beyond the point of cruelty. The parents again claimed diplomatic immunity and denied hitting the children.
The local authority applied for an emergency protection order and the case was transferred to the High Court. The judge adjourned the question of diplomatic immunity, warning the parents that their conduct should not be repeated. After a period of absence in the sending state, the parents signed an agreement with the authority on 29 February 2020, allowing the authority to speak to the children and to make visits to the family home. The parents also agreed not to hit the children or to use physical punishment.
However, in the care proceedings, the parents continued to rely on diplomatic immunity, under the Diplomatic Privileges Act 1964 (DPA) and the Vienna Convention on Diplomatic Relations 1961 (VCDR). The local authority argued that the DPA and VCDR blanket immunity from the criminal, civil (including family) and administrative jurisdiction of the receiving state ought to be subject to an exception relating to European Convention on Human Rights, art 3, which provided that ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Art 1 of the ECHR provided that parties ‘shall secure to everyone within their jurisdiction the rights and freedoms defined’, which included the rights under art 3.
On 16 March 2020, the judge stayed the proceedings, having made a finding that there was ‘a formidable case of deliberate historic harm and risk of future harm, both physical and psychological’. He was sympathetic to the local authority’s case, but thought that it would be a step too far to interpret the VCDR as subject to an exception to immunity for public law applications to protect children or vulnerable adults at risk within the diplomat’s family.
The local authority then asked the government to seek a waiver from the sending state. A waiver was refused, but the sending state recalled the father with immediate effect. On 6 April 2020, the government informed the sending state that the father and his family were personae non gratae and were required to leave the UK at the first opportunity, which was on 18 April 2020. Before that date, the four elder children left home and claimed asylum in the UK. After the parents and the two youngest children left the UK, a care order was made in respect of one of the children (AG), then aged 14.
The local authority then made an application for a declaration of incompatibility, which was opposed by the government on the grounds that it was academic. The judge, however, gave permission for the application to proceed in May 2020, on grounds including the importance of the issues raised, the fact that his March decision conflicted with two earlier first instance decisions (Re B (a child) (care proceedings: diplomatic immunity)[2002] EWHC 1751 (Fam) and A Local Authority v X[2018] EWHC 874 (Fam), and that there were 23,000 people including children in the UK benefitting from diplomatic immunity.
The local authority was arguing that there was a systems obligation in art 3 ECHR, namely an obligation to establish a framework of laws, precautions, procedures and means of enforcement which would protect children from torture, inhuman or degrading conduct to the greatest extent reasonably practicable, and that this absolute but not unfettered systems duty required the UK to breach or seek amendments to the VCDR. However, after hearing argument on the point, the Divisional Court dismissed the application for a declaration of incompatibility on 13 May 2021, saying:
‘[T]here 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’.
AG, supported by the local authority, appealed, arguing that the UK’s inability to provide effective protection for the children in this case, when it would have been reasonably practicable to do so using the powers available under the Children Act 1989, meant that arts 1 and 3 of the ECHR on the one hand, and s 2 of the DPA and arts 31 and 37 of the VCDR on the other, were irreconcilably in conflict.
Held, dismissing the appeal—
(1) The principles that the domestic court must apply were contained in [50]–[60] of Lord Reed’s judgment in R (AB) v Secretary of State for Justice[2021] UKSC 28. The European Court of Human Rights, 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. The domestic court could and should, where possible, anticipate how the ECtHR would decide the case on the basis of established principles. 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 [11], [50], below).
(2) In this case it was accepted that this was indeed a ‘clean slate’ case where there was no existing guidance from the ECtHR. There was no previous decision of the ECtHR which indicated that it would hold that the UK’s systems duty under art 3 required it to override the immunities provided by the VCDR in order to protect the children in this case. Moreover, previous cases did not give any ‘clue’ that this case would be decided in that way by the ECtHR. Although the child and the local authority denied that they were asking the court to decide this case on the basis of principles which they wanted to be adopted ‘in the light of a body of material concerned with other international instruments’, that was the import of their reliance on the powerful principles contained in the UN Convention on the Rights of the Child, the UN Convention against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment, and applicable to refoulement (see [50], [56], below).
(3) Applying the principles in R (AB), even if there was the type of conflict between the systems obligation in art 3 and the VCDR described by the child and the local authority, it was not open to this court to declare them incompatible. The ECtHR had not gone close to suggesting any such thing and, if there were clues in its jurisprudence, they pointed in favour of the inviolability of the immunities and privileges under the VCDR. This court could not be confident, let alone fully confident, that the ECtHR would regard the systems duty in art 3 as overriding the long-established international law principles enshrined in the VCDR. Neither art 31(3)(c) of the Vienna Convention on the Law of Treaties, which was applicable to the proper interpretation of the ECHR (which required account to be taken of applicable and relevant rules of international law), nor any of the cases relied upon served to give the court any such confidence (see [50], [51], [57], below).
(4) The VCDR encapsulated long-established principles of customary international law, as explained in detail in Al-Malki v Reyes (SSFCDA intervening)[2017] UKSC 61. The VCDR was the cornerstone of international relations and had withstood the test of centuries. It was intended to protect diplomats against the most serious of charges, and it operated reciprocally to protect diplomats from all countries both between democratic states and states where there was less mutual trust. The UK could not unilaterally change the provisions of the VCDR, and there had in fact never been any amendments to it. It would place an impossible and disproportionate burden upon the state if its obligations under the VCDR were held to be incompatible with the systems duty under art 3 (see Osman v United Kingdom (2000) 29 EHRR 245 and Smiljanic v Croatia (2022) 74 EHRR 10) (see [10], [59], below).
(5) The VCDR provided its own remedies, within its terms, for the situation in which diplomats broke the laws of the receiving state. For example, the sending state might voluntarily waive immunity, the receiving state might declare a diplomat to be persona non grata, and, in an extreme case, the receiving state might require the mission to be scaled back or closed. This court would not go quite...
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