Matthew Happold writes for the EJIL:Talks! on Diplomatic Immunity Trumps Children’s Rights, the English High Court Reluctantly Concludes: A Comment on A Local Authority v AG [2020] EWFC 18.
This case concerned proceedings brought by a local authority to protect three children, specifically seeking a care order under Part IV of the Children Act 1989. There were credible allegations that the children had been physically abused by both their parents. On the evidence before him, Mostyn J thought it ‘extremely unlikely’ that the parents ‘would be able to defeat an application for an interim care order’, were he to determine that issue.
The children’s father, however, was (and, quite possibly, still is) a serving diplomat at his State’s mission in London, and on that basis the parents resisted the Court making any order. Consequently, as Mostyn J stated:
“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.”
Under Article 31(1) of the 1961 Vienna Convention on Diplomatic Relations (‘the VCDR’), a diplomatic agent enjoys immunity from the receiving State’s ‘civil and administrative jurisdiction’ except in certain specified cases. Article 37(1) of the VCDR goes onto to say that ‘[t]he members of the family of a diplomatic agent forming part of his household shall… enjoy the privileges and immunities specified in articles 29 to 36’. Article 32 makes clear that the immunity belongs not to the individuals but to their State and may only be waived by the State expressly. The 1964 Diplomatic Privileges Act incorporates, inter alia, Articles 31, 32 and 37 of the VCDR into English law.
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