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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A Local Authority v AG (No. 2)  EWHC 1346 (Fam) (28 May 2020)
Cite as:  EWHC 1346 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| A Local Authority
|- and -
|- and -
|- and -
|SG, GG & AG
(through their Children's Guardian)
|The Secretary of State for Foreign and Commonwealth Affairs
(instructed by HB Public Law) for the Applicant
Ms Gemma Taylor QC & Ms Gemma Farrington
(instructed by Astrea Law) for the 1st Respondent
Mr Damian Woodward-Carlton QC & Ms Jennifer Youngs (instructed by Corper Solicitors) for the 2nd Respondent
Professor Jo Delahunty QC, Ms Lucy Logan Green & Mr Chris Barnes (instructed by Creightons) for the 3rd Respondents
Sir James Eadie QC, Professor Vaughan Lowe QC, Ms Joanne Clement, Mr Jason Pobjoy & Ms Belinda McRae (instructed by the Government Legal Department) for the Intervener
Hearing date: 18 May 2020
The hearing was conducted remotely by Zoom
Crown Copyright ©
Mr Justice Mostyn:
i) On 19 March 2020 the Secretary of State invited the foreign government to waive the immunity of the father and his family from the civil jurisdiction of the UK courts in respect of proceedings under Part IV of the Children Act 1989 both to allow the family's participation and to allow the local authority to seek and enforce care orders in respect of the children.
ii) On 27 March 2020 the foreign government stated to the Foreign & Commonwealth Office that it refused to waive the immunity of the father and his family but had formally recalled the father with immediate effect (albeit that the family's departure would not occur until lockdown was lifted).
iii) Although conditions in the home initially improved following my first judgment things seriously deteriorated after a short time. On 2 April 2020 D (18) sent an email to the local authority social worker attaching a photograph of a bloody wound to the back of his head. He explained that his father inflicted this with a shoe. He sent a further email attaching a video of the wound. In that video an adult can be heard shouting in the background.
iv) On 6 April 2020 the Secretary of State informed the foreign government that, in accordance with article 9(1) of the Vienna Convention on Diplomatic Relations ("VCDR"), the father and his dependent family members (including the mother and all of their six children) were personae non gratae and were required to leave the UK at the first opportunity. That first opportunity was on 18 April 2020 via the outbound leg of a charter flight arranged for the purpose of bringing British nationals home from the foreign country.
v) On 7 April 2020 the local authority social worker was able to speak to D who said that it was horrible living at home with his parents as they are both verbally and physically abusive; that he had decided to leave the home soon with his sister E; and that they planned to seek asylum.
vi) On 8 April 2020 I transferred the care proceedings and the claim for a declaration of incompatibility to the High Court and joined the Secretary of State as a party to the proceedings.
vii) On 9 April 2020 D and E (18) left the family home and sought asylum.
viii) On 11 April 2020 N (17) and A (14) also left the family home and sought asylum.
ix) On 14 April 2020 I held that by virtue of article 9(2) of the VCDR the family was to be given a reasonable period of time to leave the country; that period had not yet elapsed; and that accordingly diplomatic immunity continued to endure.
x) On 16 April 2020 a certificate pursuant to section 4 of the Diplomatic Privileges Act 1964 was issued by the Foreign & Commonwealth Office recording the diplomatic exchanges mentioned above.
xi) On 18 April 2020 the parents, together with G (9) and S (5), returned to their homeland on a repatriation flight.
xii) On 20 April 2020 I made an interim care order in respect of A and gave directions for the hearing of the permission issue.
xiii) On 18 May 2020 I heard the permission issue and reserved judgment. I granted the local authority permission to withdraw the care proceedings in respect of G and S. I gave directions for the final disposal of the care proceedings in respect of A.
"My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in Rule 42 of the Practice Directions Applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.
The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."
"...conclusion that provisions of the VCDR are incompatible with the ECHR could have far reaching implications, particularly in the context of the UK's diplomatic relations. The VCDR operates on the basis of reciprocity and is the foundation of the legal framework for the conduct of international relations. The practical impact of a divergence in the interpretation of the VCDR in this jurisdiction cannot be overstated. The likelihood is that any such interpretation by the UK will simply place the UK out on a limb in relation to the other 190 states."
i) The subject matter is of the utmost importance. The protection of children at risk is one of the first and foremost obligations of the organs of the state. This obligation is not merely a feature of domestic law. It is a treaty obligation of this country under the 1990 United Nations Convention on the Rights of the Child.
ii) As explained in my first judgment, there are now conflicting authorities at High Court level as to whether the Diplomatic Privileges Act 1964 prevents local authorities from exercising its powers and duties under Part IV of the Children Act 1989 in respect of the children of serving diplomats.
iii) The cohort of such children is not insignificant. There are about 23,000 people protected by diplomatic immunity in this country. That will include many children. But even if it were only a handful that would not be a good reason not to hear the claim.
iv) The consequences of the claim, were it to succeed, are not relevant in determining whether it should be heard.