Re P (Diplomatic Immunity: Jurisdiction) (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR,LORD JUSTICE SIMON BROWN |
| Judgment Date | 11 March 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0311-5 |
| Docket Number | FC3 98/5515 CMS2: FC3 98/5520 CMS2: FAFMI 98/0189 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 1998 |
[1998] EWCA Civ J0311-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(SIR RICHARD BROWN, PRESIDENT)
Royal Courts of Justice
Strand
London WC2
The Master of the Rolls
(Lord Woolf)
Lady Justice Butler-Sloss
Lord Justice Simon Brown
FC3 98/5515 CMS2: FC3 98/5520 CMS2: FAFMI 98/0189
MR P DUFFY QC and MR H SETRIGHT (Instructed by Messrs Dawson Cornwell & Co, London WC1R 4QT ) appeared on behalf of the Appellant/Mother.
MR C GREENWOOD (Instructed by Messrs Reynolds Porter Chamberlain, London WC1R 4QT and Messrs Clifford Chance, London, EC1A 4JJ) appeared on behalf of the Respondent/Father and Intervenor.
MR D LLOYD JONES (Instructed by the Treasury Solicitor, London SW1H 9JS) appeared as an Amicus Curiae.
Before this court today is an appeal from a decision given by the President on a preliminary issue which arose in these circumstances. The respondent was an official of the United States Government. From 1994 to 1997 he served as a diplomat at the United States Embassy in London. Unfortunately, during the period that he was in this country, marital problems commenced.
There are two children of the family, one born on 23 December 1984 and the other born on 18 December 1987. While the parties were in England, the children were with them and at all times they were living together as a family. The mother is a German national and the children had dual nationality.
As a result of the marital problems, divorce proceedings were started by the mother in Berlin. The mother was concerned that the children might be removed from this country. She wanted to protect her position and, as she saw it, the position of the children. On 25 July 1997 the mother issued an application in this country for a prohibited steps order to prevent the father taking the children to the United States. She also sought leave to remove the children to Germany. An ex parte order was originally made by Sumner J prohibiting the father from removing the children from the United Kingdom.
On 4 August 1997, the United States and the father issued a summons seeking to dismiss the English proceedings because of immunity from the jurisdiction of these courts. On 7 August 1997, the mother's application was dismissed for want of jurisdiction and the order of Sumner J was set aside. The mother's application for leave to appeal and a stay was refused. On 8 August 1997, the father was posted back to the United States and the mother and the children also returned there.
The mother has petitioned the court in Virginia for an order for the return of the children to the United Kingdom on the basis that the children had been abducted contrary to the Hague Convention. On 7 November 1997 the mother issued an originating summons in the United Kingdom seeking a declaration pursuant to Section 8 of the Child Abduction and Custody Act 1984 that the removal of the children from the United Kingdom by the father was a wrongful removal within the meaning of Article 3 of the Hague Convention. An order was granted ex parte by Stuart-White J with liberty to the father to apply. That application was subsequently adjourned and eventually an order was made for the determination of a preliminary issue, again as to the question of immunity, in relation to these proceedings.
The preliminary issue was heard by the President, and on 22 January 1998 he gave a decision. He came to the conclusion that there was no immunity under the Diplomatic Immunity Act based on the Vienna Convention, but there was state immunity based on the State Immunity Act 1978. It was against his decision (which meant that the application for a declaration was dismissed) that this appeal comes before this court. The matter has been expedited so that this court could determine the preliminary issue, bearing in mind that the matter is due to come again before the Virginia court on the 19th of this month.
Skeleton arguments in some detail, together with appropriate authorities, have been placed before this court by those acting on behalf of the mother, those acting on behalf of the father and the United States Government, and also by Mr David Lloyd-Jones, who has, at short notice, appeared to assist this court as Amicus Curiae, as he assisted the President in the court below.
Although the time available for this court to deal with the matter was limited, the court would have been able to do so due to the excellent material in writing which has been put before the courts by all parties. However, at the outset of the appeal, the court raised the issue with counsel as to the appropriateness of our hearing the appeal.
This court has been mindful throughout that, quite apart from interesting and difficult issues considered by the President in relation to the preliminary issue to which I have made reference, there are two children involved whose future has to be determined. The mother's wish for those children is that they should reside with her in Germany, not in this country. The father's wish is that the children should not go to Germany. Presumably it is his wish, although this is not clear, that the children should remain in the United States.
The danger in this case is that the courts, both in this jurisdiction and in the United States, are going to become weighed down with issues of complexity and difficulties arising out of the father's diplomatic status, and, as is contended by the father, the diplomatic status of the mother and the children at the time that they left this country.
The jurisdiction which the court would be exercising, if it had the right to do so, comes under Section 8 of the Abduction and Custody Act 1984 which is in these terms:
"The High Court or Court of Session may, on an application made for the purposes of Article 15 of the Convention by any person appearing to the court to have an interest in the matter, make a declaration or declarator that the removal of any child from, or his retention outside, the United Kingdom was wrongful within the meaning of Article 3 of the Convention."
Application for the declaration has to be made for the purposes of Article 15 of the Convention. It reads:
"The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or...
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Nigerian High Commission v Miss M E Iheme
...He says that state immunity usually applies when a state is named as a party (relying on Re P (Diplomatic Immunity: Jurisdiction) [1998] 1 FLR 1026 at 1034 F-G). There are exceptions where a State takes a step in the proceedings or applies for permission to intervene. In the instant case, h......