The London Borough of Barnet v AG (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lord Justice Moylan,Lord Justice Baker |
| Judgment Date | 18 November 2022 |
| Neutral Citation | [2022] EWCA Civ 1505 |
| Docket Number | Appeal No: CA-2021-000619 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1505
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lord Justice Moylan
and
Lord Justice Baker
Appeal No: CA-2021-000619
Case No: ZW20C00036
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (DIVISIONAL COURT)
Sir Andrew McFarlane. President of the Family Division and Sir Duncan Ouseley
Royal Courts of Justice, Strand
London WC2A 2LL
Caoilfhionn Gallagher KC, Tatyana Eatwell, and Chris Barnes (instructed by Bhatt Murphy) for the Appellant Child (AG)
Hannah Markham KC, Kate Tompkins and Peter Webster (instructed by HB Public Law) for the Claimant/Respondent (Barnet)
Sir James Eadie KC, Professor Vaughan Lowe KC, Joanne Clement KC, Jason Pobjoy and Belinda McRae (instructed by Government Legal Department) for the Secretary of State (SSFCDA)
Hearing dates: 1–2 November 2022
APPROVED JUDGMENT
This judgment was handed down remotely at 10.30am on Friday 18 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Sir Geoffrey Vos, Master of the Rolls:
Introduction
This case concerns the question of whether certain provisions of the Diplomatic Privileges Act 1964 ( DPA) and the Vienna Convention on Diplomatic Relations 1961 (VCDR) are incompatible with article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) which provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment” (article 3). Article 1 of the ECHR (article 1) provides that the parties “shall secure to everyone within their jurisdiction the rights and freedoms defined” including article 3.
The appellant AG (who is now 17, but was 14 in 2020 when the relevant events occurred) and her 5 siblings were subjected to severe ill-treatment, and both physical and psychological abuse by both their parents. The events took place whilst their father was an accredited diplomat and the family was living in the London Borough of Barnet. Barnet attempted to take steps to protect the children, but was impeded by the provisions of the DPA and the VCDR, which provided the father, as a diplomatic agent, with immunity from the criminal, civil and administrative jurisdiction of the receiving state (article 31). The civil jurisdiction immunity for these purposes includes family jurisdiction immunity (see Professor Denza in Diplomatic Law 4th edition (2016) at page 235).
I will explain in due course how Barnet's application for a declaration of incompatibility came before the Divisional Court. In essence, however, Mostyn J gave directions on 28 May 2020 for the hearing of that application.
At [83]–[106] of its comprehensive judgment, the Divisional Court declined to make the declaration of incompatibility. Its reasoning is encapsulated in [98] as follows:
In the light of that analysis, it is our judgment that there 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 Barnet, challenges this reasoning. They contend that article 3 includes a systems duty on the state to take effective measures to prevent private acts of torture, inhuman or degrading treatment or punishment. In Z v. United Kingdom (2002) 34 EHRR 3, the ECtHR said at [73] that article 3 enshrined “one of the most fundamental values of democratic society”, and that “[t]hese measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge”. Effective deterrence was required (see A v. United Kingdom (1998) 27 EHRR 611 at [22]). AG complains also about the suggestion that the ECHR expressed only regional concerns. This did not form a central plank of AG's oral argument.
AG submitted that the systems obligation was absolute, but not unfettered. It was an obligation to establish a framework of laws, precautions, procedures and means of enforcement which would protect children from such conduct to the greatest extent reasonably practicable (c.f. Lord Bingham at [2] in R (Middleton) v. West Somerset Coroner [2004] 2 AC 182). Ultimately this formulation seems to have been largely common ground (see also article 2 of the unincorporated UN Convention against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (UNCAT) providing for states to take effective measures to prevent torture).
AG accepted also that the ECtHR was required under article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), in interpreting the ECHR, to take account of “any relevant rules of international law applicable in the relations between the parties”. The ECHR should, therefore, so far as possible, be interpreted in harmony with other treaties (see Al-Adsani v. United Kingdom (2002) 34 EHRR 11 ( Al-Adsani) at [55], Demir v. Turkey (2009) 48 EHRR 54 at [67] and Al-Dulimi v. Switzerland (2016) (5809/08) ( Al-Dulimi) at [134]).
In essence, AG argued that, in this case, it was simply not possible to interpret article 3 in harmony with the DPA and the VCDR. The ECtHR would seek to produce alignment between treaties, but would not engage in a harmonising process of interpretation (i) if that would impair the very essence of the convention right ( Al-Adsani at [52]–[53]), or (ii) if it would prevent the ECtHR from performing its duty in full ( X v. Latvia (2014) 59 EHRR 3 ( X v. Latvia) at [94]). Moreover, when looking to interpret other rules of international law, the ECtHR would ask whether they were consonant with the ECHR ( Al-Dulimi at [139] and Matthews v. United Kingdom (1999) 28 EHRR 361 ( Matthews)). Accordingly, the ECtHR would give precedence to article 3 of the ECHR which was jus cogens (as the ICJ explained in Belgium v. Senegal 20 July 2012 at [99]: “the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)”). This was a “clean slate” case where there was no previous ECtHR authority (just like Rabone v. Pennine Care NHS Trust [2012] 2 AC 72 ( Rabone), [19] and [119]). The ECtHR would give primacy to article 3, read together with the principles of non-refoulement in article 3(1) of UNCAT and the primacy of the best interests of children provided for by article 3(1) of the UN Convention on the Rights of the Child (‘UNCRC’). AG did, however, acknowledge that the UNCRC was not incorporated into English law and could not, therefore, be given direct effect.
Ultimately, therefore, AG submitted that the UK's inability to provide effective protection for AG and the siblings when to do so, using the powers available under the Children Act 1989, would have been reasonably practicable, meant, as Mostyn J had suggested in his judgment of 16 March 2020 at [49], that articles 1 and 3 of the ECHR on the one hand and section 2 of the DPA and articles 31 and 37 of the VCDR on the other, were irreconcilably in conflict.
Conversely, the SSFCDA submitted that the DPA and the VCDR codified one of the oldest principles of customary international law. The Divisional Court made that clear by quoting extensively from the judgments in Al-Malki v. Reyes (SSFCDA intervening) [2017] UKSC 61, [2019] AC 735 ( Reyes) (see also Basfar v. Wong [2022] UKSC 20, [2022] 3 WLR 208 ( Wong) at [16]–[18]). The VCDR is the cornerstone of international relations and has withstood the test of centuries. It is intended to protect diplomats against the most serious of charges, and it operates reciprocally to protect diplomats from all countries both between democratic states and states where there is less mutual trust. The UK cannot unilaterally change the provisions of the VCDR, and there have in fact never been any amendments to it. The VCDR provides its own remedies, within its terms, for the situation in which diplomats break the laws of the receiving state. For example, the sending state may voluntarily waive immunity, the receiving state may declare a diplomat to be persona non grata, and, in an extreme case, the receiving state may require the mission to be scaled back or closed. The VCDR provides a clear and well understood international framework for the exchange of diplomatic missions between 192 contracting states. At [49]–[56], the Divisional Court had set out the risks to the safety of the UK's diplomats if the VCDR were not adhered to, as had been explained in the detailed evidence of Ms Alison Macmillan MVO, deputy director of the protocol directorate at the FCDO.
In essence, the SSFCDA submitted that there was no case in which the ECtHR had decided that article 3 was either incompatible with or should be held to outweigh the VCDR. The principles established by Lord Bingham in R (Ullah) v. Special Adjudicator [2004] 2 AC 323 had been endorsed at the highest level and repeated recently in Lord Reed's judgment in R (AB) v. Secretary of State for Justice [2022] AC...
To continue reading
Request your trial