Diplomatic immunity and care proceedings take 2

I have previously written about the intersection of diplomatic immunity and care proceedings here.  (I mean, it is just nice to write the word ‘immunity’ without the word ‘herd’ in front of it this week…)

https://suesspiciousminds.com/2018/04/24/care-proceedings-and-diplomatic-immunity/

In that case

A Local Authority v X and Others 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/874.html 

an allegation that a woman who worked for X High Commission had hit a child 40 times and shaved the head of another.  Knowles J decided in short that:-

1. Diplomatic immunity ends 31 days after the position ends
2. If there is diplomatic immunity, it means that there can’t be an arrest or prosecution
3. But if the behaviour is outside of the diplomats professional functions, a civil case (such as care proceedings can be brought)
4. Making of an ICO is not a breach of the child’s diplomatic immunity in relation to detention
5. It isn’t possible, however, to commit a parent with diplomatic immunity to prison for breach of a Court order

In this case, Mostyn J was deciding a case in which the allegation was that the father, who was a diplomat, and the mother, had assaulted their six children with a belt and in relation to one child had hit her with a broken chair leg and that child had partially lost sight in one eye.   This being a Mostyn J judgment, it is carefully reasoned and gives a very interesting potted history as to diplomatic immunity, including this very specific recital to the first statute on the point

“Whereas several turbulent and disorderly persons having in a most outrageous manner insulted the person of his excellency Andrew Artemonowitz Mattueoff, ambassador extraordinary of his Czarish Majesty, Emperor of Great Russia, her Majesty’s good friend and ally, by arresting him, and taking him by violence out of his coach in the publick street, and detaining him in custody for several hours, in contempt of the protection granted by her Majesty, contrary to the law of nations, and in prejudice of the rights and privileges which ambassadors and other publick ministers, authorized and received as such, have at all times been thereby possessed of, and ought to be kept sacred and inviolable.”

It’s not quite as niche as Handel’s Naturalisation Act 1727 which applied to just one individual, but that is still a niche introduction

https://en.wikipedia.org/wiki/Handel%27s_Naturalisation_Act_1727

http://www.bailii.org/ew/cases/EWFC/HCJ/2020/18.html

A Local Authority v AG 2020

The Local Authority sought Interim Care Orders, and the parents argued (without getting into the facts of the case that diplomatic immunity meant that civil proceedings could not be brought)

Mostyn J disagreed with the decision of the former President Lady Elizabeth Butler-Sloss in Re B 2003 and Knowles J in Re A Local Authority v X 2018 and that the diplomatic immunity did prevent civil proceedings being brought.  He cited the decision of the Supreme Court in In Reyes v Al-Malki & Anor [2017] UKSC 61, [2019] AC 735   (a case dealing with alleged race discrimination and employment law of a staff member of a Saudi diplomat. )

In essence, the only thing that could be done was to write to the FCO and ask them to liaise with the relevant country.

As discussed recently in the case about vaccinations, where a High Court Judge refers to an authority by another High Court Judge and disagrees with it, the law then shifts to be the latest decision  (unless and until another High Court Judge or a more senior Court disagrees with it).

Therefore, at the time of writing, diplomatic immunity means that child protection proceedings cannot be brought and the issue of whether or not the conduct occurred within the course of those professional duties does not arise.

I would anticipate an appeal in this case.  I don’t know which of Knowles J or Mostyn J is right   – I might possibly have my own view (legally, as indicated Mostyn J is now right and the relevant authority on the point) but it needs a Court of Appeal decision to let us know.