“But so what?” diplomatic immunity part 3 – smokey IS the bandit

You might remember, just before everyone’s world changed forever, that there was a case about alleged child abuse where the father had diplomatic immunity and the Court decided that the legal provisions in relation to that meant that an Interim Care Order to remove the children could not be made.

https://suesspiciousminds.com/2020/03/19/diplomatic-immunity-and-care-proceedings-take-2/

Well, things have developed.

A Local Authority v AG 2020

https://www.bailii.org/ew/cases/EWHC/Fam/2020/1346.html

The cast list in this is impressive. If you were doing a family law version of Kenneth Branagh’s Murder on the Orient Express, you couldn’t go far wrong with this list.  (A few honourable exceptions are missing, of course, but it is a sparkling list of extremely good lawyers.  If I’d been there, I’d have taken my autograph book…)

Basically, since the 20th March judgment, the Secretary of State invited the diplomats home country to withdraw his diplomatic status, they refused, but said that they all had to come home as soon as lockdown allowed it.

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.

The issues in this particular case were resolved – the children are all out and safe, but there was an application to declare the Diplomatic Privileges Act 1964 as incompatible with the Human Rights Act 1998 (in relation to the inability to protect children whose parents are diplomats).

This case doesn’t resolve that, but it does decide the pre-fight – should there even be a fight on the principle given that it isn’t necessary in the individual case.

It being a Mostyn J judgment, it gathers up the relevant law on ‘academic’ claims and sets it out clearly and briskly.  If you could afford him, Mostyn J would be a very good author for “Insane Legal Complexities Made Simple”

7. Up until 1999 the law set its face against hearing any academic claim: see the decisions of the House of Lords in Sun Life Assurance Co. of Canada v Jervis [1944] AC 111, 113-114; and Ainsbury v Millington (Note) [1987] 1 WLR 379, 381. In the latter case Lord Bridge stated that it was a fundamental feature of the judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.
8. However, in R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450, the House of Lords stipulated an exception to this absolute rule. Lord Slynn of Hadley stated at 456-457:
9. 1.  “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.”

9. Although I have had cited to me many subsequent authorities, all of them seem to me to be no more than illustrations of the Salem principle. This is straightforward. The court should exercise its discretion to hear an academic application in the public law field with caution. It should only hear such an application where there is a good reason in the public interest to do so.

11. Lord Slynn gives as an example the situation where a discrete point of statutory interpretation arises which does not involve detailed consideration of facts and where a large number of similar cases are anticipated. In such circumstances there will be little difficulty in deciding that there is a good reason in the public interest to hear the academic claim. That seems obvious. However, I do not deduce from that illustration a rule that a good reason in the public interest for hearing the claim can only be shown if a large number of cases would be thereby affected. It all depends on the context.
12. In this case it is certainly true that there have not been many reported cases of proceedings under Part IV of the Children Act 1989 involving the children of serving diplomats. But so what? If the resolution of the academic issue helps to protect even one such child in peril, then that surely is a good reason in the public interest to hear it.

That’s stirring stuff, and if my chair wasn’t a swivel one with wheels, I’d be climbing on it to punch the air and shout “Captain My Captain” like Dead Poets Society.

So, there will be a hearing about whether the provisions are incompatible with the HRA.  Nobody knows how that will go.  The Secretary of State has been joined, and there’s a significant Government interest in not futzing with the provisions of what diplomatic immunity mean  (they have to think about their own overseas diplomats, international relations and all sorts of things that I absolutely don’t think are as important as making sure children aren’t beaten, but we have different jobs and different hats)

Wait and see how the argument goes.