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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AG (A Child), Re  EWCA Civ 1505 (18 November 2022)
Cite as:  EWCA Civ 1505,  Fam 261,  3 WLR 249
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Appeal No: CA-2021-000619
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
B e f o r e :
LORD JUSTICE MOYLAN
LORD JUSTICE BAKER
|THE LONDON BOROUGH OF BARNET||Claimant/Respondent
|- and -
|AG (A Child)
|THE SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVLOPMENT AFFAIRS
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
Crown Copyright ©
Sir Geoffrey Vos, Master of the Rolls:
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. …
Essential factual background
The Divisional Court's judgment
The main legislative provisions
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of [inapplicable exceptions for real property, succession and professional or commercial activity] …
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
Issue 1: What is the precise content of the systems obligation on the state provided for by article 3?
Issue 2: Was the Divisional Court right to decide that there is no conflict between the ECHR and the DPA and the VCDR?
Issue 3: Was the Divisional Court right to decide that neither article 3 nor ECtHR jurisprudence required the UK to breach the VCDR?
The [ECHR] … cannot be interpreted in a vacuum. The Court must be mindful of [its] special character as a human rights treaty, and it must also take the relevant rules of international law into account. The [ECHR] should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity … It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6(1). Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.
Issue 4: If there is a conflict between article 3 and the DPA and the VCDR, should a declaration of incompatibility be made?
Lord Justice Moylan:
Lord Justice Baker: