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High Court judge highlights clash between diplomatic immunity and child protection

A Family Court case has highlighted a “virtually insoluble dilemma” between diplomatic immunity and child protection, leading Mr Justice Mostyn to call for an amendment to the 1961 Vienna Convention on Diplomatic Relations.

He said: “This case gives rise to a seemingly irreconcilable clash between two international treaties incorporated into our domestic law by statutes. These are the 1961 Vienna Convention on Diplomatic Relations, enacted by the Diplomatic Privileges Act 1964, and the 1953 European Convention on Human Rights, enacted by the Human Rights Act 1998.”

The case of A Local Authority v AG [2020] EWFC 18 arose when a local authority sought a care order in respect of three of the six children of a diplomat from an unnamed country serving in London.

This followed one of their older siblings having contacted the local authority and reported the children were being physically chastised at home.

The primary school attended by two of the children then made a referral to the local authority after one child told a teacher: “I get hit with a thick belt everyday by my mum, but my dad is much worse” and later told a social worker that his father had advised his mother “that she should not harm him to the extent which would require hospital attendance as this may lead to professionals becoming aware of the physical chastisement”.

Mostyn J said that until the issue of diplomatic immunity was resolved he could not make the emergency order sought by the local authority.

He had directed case papers should be disclosed to the diplomatic mission and to the Foreign & Commonwealth Office, but the latter refused to become involved.

The judge said the court was informed that neither the Foreign nor the Education Secretary would intervene in the case at this stage.

“Neither chose to send an observer to the hearing,” he said. “This is extremely surprising. In virtually all the cases to which I was referred the Foreign & Commonwealth Office had intervened, but none of them concerned a currently serving diplomat. I would have been greatly assisted had the Foreign & Commonwealth Office intervened and made submissions.”

He said none of the stated exceptions to diplomatic immunity applied to the  case and arguments made “that I should interpret these provisions pursuant to section 3 of the Human Rights Act 1998 to ‘read in’ another exception, namely a public law application to protect children or vulnerable adults at risk within the diplomat's family forming part of his household…I regret that it is a step too far for me to take”.

He said the case “gives rise to a virtually insoluble dilemma. It seems to me that an amendment to the Convention is necessary at the very minimum to address this scenario”.

The case was stayed but not dismissed pending a decision by the government involved on whether to waive immunity or by the British government to expel the diplomat and his family.

Mark Smulian

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