Strand, London, WC2A 2LL
B e f o r e :
| A Local Authority
|- and -
E And SL
(through their Children's Guardian)
Miss Anna McKenna QC and Mr Christopher Poole for X
Mr Hugh Southey QC and Miss Markanza Cudby for D and S
Mr Sam Momtaz QC and Miss Kate Tompkins for E and SL
Mr Guglielmo Verdirame and Mr John Bethell for the Secretary of State
Crown Copyright ©
Mrs Justice Knowles:
SUMMARY OF KEY ISSUES
"Under the authority of Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs conferred on me and in accordance with the provisions of Section 4 of the Diplomatic Privileges Act 1964, I, [name withheld], Director of Protocol at the Foreign and Commonwealth Office ("the FCO") hereby certify the following facts:
1. On 22 July 2013 the High Commission for […] X ("the High Commission") notified the FCO that the diplomatic appointment of [the mother] as a member of the administrative and technical staff at the High Commission had commenced on 15 July 2013.
2. Following recent correspondence with the Charge d'Affaires at the High Commission in order to clarify the date of [the mother's] final departure or the termination date of her functions with the mission, the FCO considers that [the mother's] functions with the mission ended on 31 December 2017.
3. Pursuant to Article 39(2) of the Vienna Convention on Diplomatic Relations 1961, the FCO normally considers that individuals who enjoy diplomatic privileges and immunities shall continue to do so for 31 days after the day on which their functions, or those of the person from whom they derive their privileges and immunities, come to an end. Thereafter, they are treated as having leave to remain in the United Kingdom for a further 90 days, in accordance with Section 8A of the Immigration Act 1971.
4. As a result [the mother's] diplomatic privileges and immunities ended on 31 January 2018, along with the diplomatic privileges and immunities of any person who was recognised by the FCO as being a member of her family and who formed part of her household, within the meaning of Article 37(2) of the Vienna Convention on Diplomatic Relations 1961."
SUMMARY: THE PARTIES' POSITIONS
THE LEGAL ISSUES
"1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of:
(a) The appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;
(b) The arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission…"
The VCDR has effect in the UK pursuant to the 1964 Act. Section 2 of the 1964 Act provides that certain Articles of the VCDR set out in Schedule 1 to the 1964 Act shall have the force of law in the UK. The Articles in Schedule 1 are Articles 1, 22-24, 27-40 and 45 of the VCDR.
"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:
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.
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.
2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties…
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist."
If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact."
"8 – Exceptions for seamen, aircrews and other special cases.
(3) Subject to subsection (3A) below, the provisions of this Act relating to those who are not British citizens shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent.
(3A) For the purposes of subsection (3), a member of a mission other than a diplomatic agent (as defined by the 1964 Act) is not to count as a member of a mission unless –
(a) he was resident outside the United Kingdom, and was not in the United Kingdom, when he was offered a post as such a member; and
(b) he has not ceased to be such a member after having taken up the post
8A – Persons ceasing to be exempt.
(1) A person is exempt for the purposes of this section if he is exempt from provisions of this Act as a result of section 8(2) or (3).
(2) If a person who is exempt –
(a) ceases to be exempt, and
(b) requires leave to enter or remain in the United Kingdom as a result, he is to be treated as if he had been given leave to remain in the United Kingdom for a period of 90 days beginning on the day on which he ceased to be exempt."
In addition to the 31 days described above, the policy of Her Majesty's Government is that an individual previously exempt from immigration control by reason of section 8 of the 1971 Act will be treated as having 90 days leave to remain in the UK, pursuant to section 8A of that Act.
(a) Whether the certificate was determinative of the date when the mother ceased to enjoy diplomatic privileges and immunities;
(b) If not, what was the duration of the reasonable period under Article 39(2) of the VCDR in the circumstances of this case;
(c) whether the FCO's view that the children ceased to be members of the mother's household in November 2016 when they went to live with short-term foster carers was correct;
(d) If so, whether D and S became members of the mother's household again when they returned to live with the mother in July 2017 and December 2017 respectively;
(e) If not, whether the children have remained members of the mother's household throughout or whether they ceased to be members of the mother's household at some other time and, if so, when;
(f) and whether the court's power to make care orders was affected in any way by the existence of diplomatic immunity and privileges as a matter of principle.
(a) The February Certificate
"Certificates under the Diplomatic Privileges Act are rigorously confined to questions of fact within the special knowledge of the Foreign and Commonwealth Office, such as notifications of appointments of members of diplomatic missions. Questions of law such as whether the defendant is permanently resident in the United Kingdom are left to the courts, though in appropriate cases facts relevant to these questions might be covered in a certificate."
"Section 8 of the 1968 Act provides that, if a question arises in any proceedings before the English courts as to whether a person is entitled to any privilege or immunity, a certificate issued under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact…. The policy reasons justifying the conclusiveness of FCO certificates has been discussed most frequently in the context of issues relating to state immunity. For example, in The Arantzazu Mendi  AC 256, 264 Lord Atkin said:
'Our state cannot speak with two voices on such a matter [that is state sovereignty and matters flowing from it], the judiciary saying one thing, the executive another. Our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states; and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone' …"
By direct analogy, I have no doubt that the same policy reasons apply to FCO certificates issued pursuant to the 1964 Act.
(b) The Children's Status
The Effect of Diplomatic Immunity on the Court's Jurisdiction
"17. The father is within the group of administrative and technical staff of the embassy. Consequently, he and his wife and children enjoy, as I understand it, the following privileges under the 1964 Act which are relevant to these proceedings. His person is inviolable. His private residence is inviolable. He has immunity from criminal proceedings and is not obliged to give evidence in any proceedings. No measures of execution can be taken against him. He and his family are not, however, immune from civil proceedings in the case of acts performed outside the course of his duties. It has not been suggested to me that the beating and bruising of B come within the scope of the duties of the father. Prima facie, it would therefore appear on the written evidence before me that the father has no immunity from family proceedings, including care proceedings which are civil proceedings. This loss of immunity would also seem to apply to the mother and to B, who derive their immunity from the father."
The President went on to consider whether she was able to make orders which could not ultimately be enforced. She did not find this to be an impediment and concluded that the making of an interim care order fell within the exception to Article 37(2) of the 1964 Act. She went on to consider whether the child was being detained under the interim care order and concluded that the child's present situation did not breach her rights under Article 29 of the VCDR [paragraphs 32 and 35].
"40. … if I were wrong in the view I have taken of the Diplomatic Privileges Act 1964, leaving this court with jurisdiction to entertain the local authority's application, I would find myself satisfied that such a result is necessary in order to read the 1964 Act in a way that is compatible with the Human Rights Act 1998."
I respectfully adopt that analysis which also applies to the making of final care orders.
"The Court reiterates that Art.6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a contracting state's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Art.6(1) should describe in detail the procedural guarantees afforded to litigants - proceedings that are fair, public and expeditious - without protecting the implementation of judicial decisions. To construe Art.6 as being concerned exclusively with access to a court and the conduct of proceedings would indeed be likely to lead to situations incompatible with the principle of the rule of law which the contracting states undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the "trial" for the purposes of Art.6."
THE WELFARE ISSUES