Re P (Children Act: Diplomatic Immunity) (No 1)
| Jurisdiction | England & Wales |
| Judgment Date | 07 August 1997 |
| Date | 07 August 1997 |
| Court | Family Division |
(Stuart-White J)2
Diplomatic relations — Diplomatic immunity — Diplomatic agents — Family of diplomatic agent — Extent of immunity — Child custody dispute between diplomatic agent and spouse — Jurisdiction of courts of receiving State — Waiver — Vienna Convention on Diplomatic Relations, 1961, Articles 1, 31, 32 and 37 — Relevance of human rights agreements — European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 — United Nations Convention on the Rights of the Child, 1989 — The law of England
Summary: The facts:—The father was a United States national, who was a member of the United States diplomatic mission to the United Kingdom. The mother was a German national. There were two daughters who resided with the parents in London. The mother commenced divorce proceedings in Germany. Fearing that the father intended to remove the two children to the United States of America, the mother applied to the High Court in London for orders under the Children Act 1989, restraining the father from removing the two children from the United Kingdom and seeking the leave of the Court to take the children to Germany. An interim order was granted prohibiting the father from removing the children from the United Kingdom. The father and the United States of America, which intervened in the proceedings, applied for a declaration that the Court had no jurisdiction because the father, as a diplomatic agent, and the children, as members of the family of a diplomatic agent forming part of his household, were entitled to diplomatic immunity.
Held:—The application by the father and the United States of America was granted. The Court had no jurisdiction.
(1) In accordance with Articles 31 and 37 of the Vienna Convention on Diplomatic Relations, 1961, which had been given effect in English law by the Diplomatic Privileges Act 1964, the father and the children were immune from the jurisdiction of the English courts. That immunity could be waived only by the sending State, the United States of America, which had indicated that it did not waive the immunity in the present case. The Court accordingly had no discretion which it could exercise on behalf of the mother (pp. 480–2).
(2) The European Convention on Human Rights, 1950, and the United Nations Convention on the Rights of the Child, 1989, did not alter this conclusion. Neither had been incorporated into English law. They did not assist in construing the provisions of the Diplomatic Privileges Act 1964, which were clear and unambiguous (pp. 483–4).
The text of the judgment of the Court commences on the following page.
STUART-WHITE J: The proceedings before me concern two children - R, who is 121/2, and C, who is 91/2.
The children are the children of married parents. The father is a US national, the mother is a German national and she has commenced divorce proceedings in Germany on 24 July 1997.
The first of the applications before me is an application by the mother in Children Act proceedings by which she claims a residence order, specific issue and prohibited steps order and leave to remove the children permanently from England and Wales to Germany. Her application came before Sumner J ex parte on 25 July 1997 and an interim prohibited steps order was granted prohibiting the father from removing the children from their present address or from England and Wales. The order was expressed to last until yesterday, 6 August 1997, which was the return date for her application.
The second application before me is on a summons by the USA and the father, which asserts, and invites the court to hold, that the court has no jurisdiction to entertain the mother's application because both the father and the children enjoy immunity from process by reason of the diplomatic immunity which derives from the Vienna Convention on Diplomatic Relations 1961, the relevant Articles of which were incorporated into English law by the Diplomatic Privileges Act 1964 and which are set out in Sch 1 to that Act.
It is plainly appropriate to deal first with the summons by the USA and the father. Indeed Mrs Roberts, who appears for the USA and the father, has instructions only in relation to that summons and not in relation to the mother's applications. The facts relating to that summons can be succinctly stated.
The father is a senior diplomat in the service of the USA. He is employed as a member of the diplomatic staff at the US Embassy in London. He, the mother and the two children all live at the same address in London, at premises provided by the Embassy. The mother...
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