Re P (Child Abduction: State Immunity)
| Jurisdiction | England & Wales |
| Judgment Date | 22 January 1998 |
| Year | 1998 |
| Date | 22 January 1998 |
| Court | Family Division |
Family Division
Before Sir Stephen Brown
State immunity - removal of children from jurisdiction - act of governmental nature
The action of removing children from the jurisdiction at the end of a diplomatic posting could not be construed as an act performed in the exercise of a diplomat's functions within article 39(2) of the Vienna Convention on Diplomatic Relations 1961 (Cmnd 2563), scheduled to the Diplomatic Privileges Act 1964.
However, state immunity was a different concept and an agent could enjoy immunity is respect of his acts if they were of a sovereign or governmental nature.
In the instant case, as the father's return to the United States with his family was done in compliance with a direct order of his government, it was an act of a governmental nature and therefore subject to state immunity from legal process.
Sir Stephen Brown, President of the Family Division, so held on a preliminary hearing to determine whether diplomatic and/or state immunity should preclude the English court from exercising jurisdiction to decide the issues raised by the plaintiff mother when setting aside the originating summons whereby she sought a declaration under section 8 of the Child Abduction and Custody Act 1985 that the removal of the children from the jurisdiction was a wrongful removal within the meaning and terms of article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, set out in Schedule 1 to the Child Abduction and Custody Act 1985, on the ground that the United States Government and their employee, the defendant father, were immune from the jurisdiction of the court.
Mr Christopher Greenwood for the United States government and the father; Mr Peter Duffy, QC and Mr Henry Setright for the mother; Mr David Lloyd Jones as amicus curiae.
THE PRESIDENT said that the father, a member of the diplomatic corps, had lived with his family in London for the duration of his posting to the United Kingdom.
Shortly before their departure from London the mother started divorce proceedings in her own country of origin and applied for residence orders in respect of the children pursuant to the provisions of the Children Act 1989, in London. Those proceedings were set aside on the ground of diplomatic immunity.
During a succession of hearings concerning, inter alia, jurisdiction and custody in various courts and jurisdictions, the family...
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