Re P (Minors) (Diplomatic Immunity)

JurisdictionEngland & Wales
Judgment Date1998
Year1998
Date1998
CourtFamily Division

Jurisdiction – Children – Mother applying for residence, specific issue and prohibited steps orders – Father claiming diplomatic immunity – Whether court had jurisdiction to entertain mother’s application.

The married parents of two children lived together in London. The father was a United States national and a diplomat in the service of the United States of America. The mother, who was a German national, commenced divorce proceedings in Germany. As she feared the father would remove the children to the United States of America, the mother applied in England for residence, specific issue, and prohibited steps orders under the Children Act 1989 and for leave to remove the children permanently to Germany. The United States of America and the father asserted that the English court had no jurisdiction to entertain the mother’s application because both the father and the children enjoyed diplomatic immunity from process.

Held — By virtue of the provisions of the Vienna Convention on Diplomatic Relations 1961, the relevant articles of which were incorporated into English law by the Diplomatic Privileges Act 1964, the father enjoyed immunity from both the criminal and civil jurisdiction of the receiving state. Although divorce proceedings had been commenced by the mother, the children also enjoyed diplomatic privilege as they formed part of the father’s household. Whilst it could be argued that the operation of the provisions of the Vienna Convention and the 1964 Act in a way which was adverse to the welfare of a child and which ignored the child’s wishes would be contrary to the spirit of the 1989 Act, that did not affect the fact that neither the Vienna Convention nor the 1964 Act contained any provision giving the court a discretion to entertain the mother’s application in the present case nor had Parliament, when enacting the 1989 Act, amended or repealed the material parts of the 1964 Act. Further, although since the incorporation of the Vienna Convention in the 1964 Act the European Human Rights Convention and the United Nations Convention on the Rights of the Child had been agreed, Parliament had not incorporated them into English law so the provisions of those conventions were of no assistance in construing the 1964 Act. Accordingly, the claim for diplomatic immunity succeeded and the mother’s applications would be dismissed.

Cases considered in the judgment

British Airways Board v Laker Airways Ltd, British Caledonain Airways Ltd v Laker Airways Ltd, Laker Airways Ltd v Secretary of State for

Trade and Industry [1985] AC 58, [1984] 3 All ER 39, [1984] 3 WLR 413, HL; rvsg in part [1984] QB 142, [1983] 3 All ER 375, [1983] 3 WLR 544, CA.

Bolasco v Wolter (1957) 24 ILR 525, Luxembourg CA.

Laverty v Laverty Canada LEXIS 2892 1994, Ont CJ.

Propend Finance Pty Ltd v Singh (14 March 1996, unreported), Ch D; affd in part (1997) Times, 2 May, [1997] CA Transcript 572.

Application

The mother of two children applied under the Children Act 1989 for residence, specific issue, and prohibited steps orders. The United States of America and the father cross-applied inviting the court to hold that the court had no jurisdiction to entertain the mother’s applications as the father and the children enjoyed diplomatic immunity under the Vienna Convention on Diplomatic Relations, as set out in Sch 1 to the Diplomatic Privileges Act 1964. The facts are set out in the judgment of Stuart-White J.

Henry Setright (instructed by Margaret Bennett Solicitors) for the mother.

Jennifer Roberts (instructed by Clifford Chance) for the father and the United States of America.

STUART-WHITE J.

The proceedings before me concern two children – R, who is twelve and a half, and C, who is nine and a half – but there are relating to those two children two applications.

The children are the children of married parents. The father is a United States 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 1989 proceedings by which she claims a residence order, specific issue and prohibited steps orders 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, which was the return date for her application.

The second application before me is on a summons by the United...

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1 cases
  • Re P (Child Abduction: State Immunity)
    • United Kingdom
    • Family Division
    • 22 Enero 1998
    ...would be set aside and the proceedings would be discharged. Cases referred to in judgmentP (Children Act: diplomatic immunity), Re[1998] 2 FCR 480. Propend Finance Pty Ltd v Sing [1997] CA Transcript 572, Zoernsch v Waldock [1964] 2 All ER 256, [1964] 1 WLR 675, CA. Preliminary IssueA preli......

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