The local authority issued care proceedings under Part IV of the Children Act 1989 seeking interim care orders in respect of three children following allegations that their father, a serving diplomat of a foreign government, and their mother had physically abused them. The judge concluded that, although the treatment which the children experienced at the hands of their parents met the threshold criteria under section 38 of the Children Act 1989, he was unable to make the interim care orders sought by the local authority since the father, and members of his family forming his household, enjoyed diplomatic immunity from civil proceedings pursuant to articles 31 and 37 of the Vienna Convention on Diplomatic Relations (1961) as scheduled to the Diplomatic Privileges Act 1964. Accordingly, he stayed the care proceedings and granted permission for the local authority to apply for declarations that to the extent that section 2(1) of, and articles 29, 30(1), 31(1) and 37(1) and (2) of Schedule 1 to the 1964 Act, operated to (i) prevent a court from hearing and deciding an application for protective measures to be taken in respect of the children of members of a diplomatic mission where those children were suffering or at risk of suffering significant harm, and /or (ii) prevent a number of authorities, including local authorities and the police, from acting, pursuant to sections 17, 31, 38, 43, 46 and 47 of the Children Act 1989 and section 11 of the Children Act 2004, to safeguard the children of members of a diplomatic mission where those children were suffering or at risk of suffering significant harm, then those provisions of the 1964 Act were incompatible with articles 1, 3 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
On the application—
Held, application dismissed. (1) There was no conflict between the Human Rights Convention and the Diplomatic Privileges Act 1964/Vienna Convention. The human rights jurisprudence requirement for a legal system to be in place to protect children through legislation, investigation and then the taking of other measures could not be read as also requiring the United Kingdom and the other Council of Europe member states, all parties to the Vienna Convention, to adopt a system which would require them to breach that Convention towards each other and to other states. The Human Rights Convention did not require that in its text, and there was no jurisprudence which required the contracting parties to breach the Vienna Convention in order to avoid a breach of the Human Rights Convention. That was not surprising since the European Court of Human Rights could not contemplate requiring a breach of an international Convention, let alone a Convention of global reach, well beyond the regional concerns of the Human Rights Convention, in order that the obligations of the latter be met. The issue simply had not been addressed and, if it were to be addressed, it was unthinkable that it would simply be addressed by a decision of the European court rather than through a separately negotiated protocol (para 98).
(2) Although the state's duty not to ill-treat people in a way which breached article 3 of the Human Rights Convention was absolute, the state's duty to protect people from the harm which others might do to them was a duty to do what was reasonable in all the circumstances. It was clear that the protective duty was subject to practical constraints and the diplomatic immunity of those subject to investigation was plainly one such constraint. Although the protective measures were those which were reasonably to be expected the duty did not impose an impossible or disproportionate burden on the authorities in terms of priorities. It was not reasonable, possible or proportionate to require the state to act in breach of the Vienna Convention because of the importance which it had in reciprocal and global international relations. Accordingly, the natural meaning of article 3 of the Human Rights Convention, as developed in the European court’s jurisprudence, did not provide a basis for saying that the 1964 Act, or the Vienna Convention, was incompatible with it. This was not a case for remedy, if remedy was required, by interpretation under section 3 of the 1998 Act and therefore there was no need to consider whether the 1964 Act could be read down under that section (paras 99–101, 104, 105, 119).
(3) The provisions of the Vienna Convention and the United Nations Convention on the Rights of the Child (“UNCRC”) were reconcilable by reference to the specific provision for the children of diplomats and their immunities in the Vienna Convention. There was no provision for the special position of such children or their diplomat parents in the UNCRC. The specific provisions in the Vienna Convention would sensibly apply instead of the general provisions of the UNCRC or Human Rights Convention where they fell within the scope of the Vienna Convention so that the UNCRC was not so much incompatible as inapplicable (para 112).
(4) There was no basis in article 6 of the Human Rights Convention for holding that the 1964 Act/Vienna Convention was inconsistent with it. Court proceedings had to take place in the territory of the sending state, absent its waiver or cessation of immunity. The same points made in relation to article 3 and section 3 of the 1998 Act therefore applied to a reading down interpretation for the purposes of article 6 (para 133).
Professor Dan Sarooshi QC, Hannah Markham QC, Kate Tompkins and Peter Webster (instructed by HB Public Law, Harrow) for the local authority.
Professor Jo Delahunty QC, Chris Barnes, Lucy Logan Green and Professor Antonios Tzanakopoulos (instructed by Creighton & Partners) for the respondent child.
Sir James Eadie QC, Professor Vaughan Lowe QC, Joanne Clement, Jason Pobjoy and Belinda McRae (instructed by Treasury Solicitor) for the Secretary of State.