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Care proceedings and diplomatic immunity

This photo has NO relevance to the case being discussed. I know sometimes I’m tenuous, but this time there’s literally no connection. It may as well be a picture of the Frog Brothers. (“We trashed the one who looked like Twisted Sister!”)

 

 

Sadly, my gut instincts that I’d used the Lethal Weapon 2 gag about diplomatic immunity proved correct, and I’ve got nothing else. Believe me, I’ve tried…. I have utterly no reason to believe that Balki from Perfect Strangers was a diplomat, but at least I’ve made you think about Perfect Strangers again. Goodness, that was an awful show.  Was it as bad as Small Wonder, a show involving a precocious child who also happened to be a robot? They are both about as relevant to this case.

 

 

 

But this is a case in which a woman who worked for the High Commission of X country (we never get to learn which) became involved in care proceedings – it being alleged that she had hit her children 4o times with a belt and shaved the head of one of the children as a punishment.

 

This is what the Judge found proved

 

  1. My judgment in October 2017 recorded the basis upon which the threshold criteria were satisfied. To summarise, the children had suffered significant physical and emotional harm as a result of the mother having smacked and slapped all of them; having hit all of the children with a belt using up two or three strikes; having thrown a shoe at D’s head causing injury; having shouted at D and threatening to send him to X if he did not behave and thereby scaring him; and having threatened to cut D’s hair as a punishment. That abusive behaviour towards the children was to be addressed by the mother engaging in therapeutic work, a detailed programme of which had been endorsed by me in my judgment. At that time, the mother had expressed a willingness to commit herself to the therapeutic work required. It is important to bear the above in mind when assessing the situation now.

 

The Court had to hear legal argument about whether :-

 

(a) She had diplomatic immunity at the time that the allegations had occurred and

(b) Whether her diplomatic immunity was a shield against care proceedings

 

A Local Authority v X and Others 2018

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

 

A lot of the judgment is quite dense, so I’m just going to give you the whistlestop highlights – if you’ve got a diplomatic immunity / care proceedings crossover case or when you get one in the future, you’ll want to read the whole case.

Just by way of context, by the time of this hearing, the LA plan was to rehabilitate all of the children to mother’s care, she would be moving back to X and the LA sought no orders. The Guardian vehemently opposed that plan.  The older children wanted to go back to mother’s care, but in England, not in X country.

In terms of whether diplomatic immunity applied, as the mother had left the employment of the High Commission of X, a notice had been given. The diplomatic immunity ends 31 days after that notice.  (So if you have diplomatic immunity and leave the job that attracts it, you still keep the immunity for 31 days after your last day. Who knew?)

 

  1. It is the FCO’s policy that, pursuant to Article 39(2) of the VCDR, individuals who enjoy privileges and immunities by reason of their diplomatic functions shall cease to enjoy them when they leave the country, or alternatively shall normally be considered to have ceased to enjoy them 31 days after their functions (or those of the person from whom that individual derives their privileges and immunities, in the case of a family member) come to an end.

 

The FCO certificate and the 31 days of grace had ended before the allegations were said to have happened, so diplomatic immunity would not have applied. However, the Court went on to consider and determine whether it would have been a shield in any event.

 

  1. Re B (Care Proceedings: Diplomatic Immunity) [2002] EWHC 1751 (Fam), [2003] 1 FLR 241 considered the making of an interim care order in respect of a 13-year-old child of a member of the administrative and technical staff of a foreign mission who was found to have suffered serious non-accidental injuries consistent with repeated and severe hitting. The father and his family were accepted as having no immunity from care proceedings, which were civil proceedings, provided that they related to acts performed outside the course of the duties of the father. It was not suggested the beating and bruising of the child came within the scope of the duties of the father, and on this basis the court found the father, mother, and the child had no immunity from family proceedings and so continued the interim care order with the child being placed in foster care. Nothing in that decision suggested that the child lost her diplomatic rights and privileges by reason either of being the subject of an interim care order and/or being placed with foster parents [see paragraph 17].

 

 

Under diplomatic immunity, the person cannot be imprisoned or arrested. Neither is it possible to bring  a civil lawsuit for actions that relate to the functions the person was carrying out as part of their duties.  It is, however, possible to bring  a civil case for behaviour or alleged behaviour which was outside of the duties of the diplomat.  (It obviously isn’t part of your duties as a diplomat to hit your children with a belt)

 

The Effect of Diplomatic Immunity on the Court’s Jurisdiction

  1. Given the conclusions I have reached, neither the mother nor the children retained their diplomatic privileges and immunities which were lost on 31 January 2018.
  2. That conclusion does necessarily permit the court to make final care orders. Both Mr Newton QC and Miss McKenna QC sought to persuade me that the court had no jurisdiction to do so if the children retained their diplomatic privileges and immunities. Even if they do not, as I have found, there may be other obstacles to the court’s jurisdiction.
  3. The decision of the then President of the Family Division, Lady Justice Butler-Sloss, in Re B [see above] suggested that there might be limits to the court’s power to enforce either interim or final care orders. Arguments that the court had no jurisdiction to make care orders were rejected in that case. The President considered Article 29, Article 30, Article 31 and Article 37(2) in coming to the following conclusion:
  4. “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].

  1. Having come to those conclusions, the President recognised that there were limits to the power of the court to enforce any orders which might be flouted by either of the parents [paragraph 37]. Though it was not strictly necessary for her to consider the impact of the European Convention on Human Rights on the 1964 Act, she expressed the opinion that the European Convention Article 3 rights of the child had been breached. In those circumstances, the court as a public authority had a positive obligation to protect a child who had been exposed to abusive treatment which appeared to fall within article 3. Her final conclusion on the court’s jurisdiction reads as follows:
  2. “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.

  1. In this case I am being asked to make final care orders in respect of S, E and SL. That course is opposed by the local authority and by the children’s mother. I have concluded that I do have the jurisdiction to make final care orders in respect of these children in circumstances where they have lost their diplomatic privileges and immunities. Though I was not required to do so, I would have come to the same decision if the children had retained their diplomatic privileges and immunities. My reasoning is as follows.
  2. The President in Re B held that any limitation on the power to enforce orders should not prevent orders being made. In that case there was little argument regarding enforcement and, in consequence, I do not regard the remarks made about the power of enforcement as determinative of the issue. It would be surprising in my view if the provisions of Article 37(2) permitted proceedings to be brought but did not also permit consequent orders to be enforced. It would also be contrary to the rule of law for a court to determine a person’s legal rights and then not enforce them. Principles such as the rule of law are well recognised in international law and are relevant, in my view, when interpreting the provisions of Article 37(2). In Jelicic v Bosnia (2008) 47 EHRR 13, European Court of Human Rights held that there had been a breach of Article 6(1) for the failure to enforce a final judgement in respect of the contents of a bank savings account. The Court declared in paragraph 38 as follows:
  3. “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.”
  4. In this context I note that Article 31(3) of the VCDR contains no prohibition on enforcement for diplomatic agents in proceedings under the civil and administrative jurisdiction of the receiving state in respect of actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his official functions [Article 31(1)(c)]. That Article also extends to members of the administrative and technical staff of a mission who do not enjoy immunity for acts performed outside the course of their duties. It is plain in this case that the mother’s behaviour towards her children was not within the course of her duties as a member of the administrative and technical staff of X High Commission. There was nothing in Article 31(1)(c) which prevented the enforcement of care orders in public law proceedings and the enforcement of such orders would, in my analysis, also be compatible with Article 29 which provides for the inviolability of the person of the diplomatic agent who shall not be liable to any form of arrest or detention.
  5. The local authority, supported by the mother, sought to argue that the provision of foster care for the children comprised an element of detention contrary to Article 29. I do not accept that submission and neither did the President in Re B. The children presently placed in foster care were not locked in or prevented from leaving the home and therefore their present situation fell very far short of a breach of any rights they might have under Article 29 of the VCDR. That conclusion was supported by the judgment of the current President of the Family Division in in Re A-F (Children) [2018] EWHC 138 (Fam) [see paragraphs 37-44]. There was nothing in the children’s circumstances in foster care which amounted to a deprivation of their liberty or an infringement of any rights they might have pursuant to Article 29 of the VCDR.
  6. Did the mother retain any residual rights and privileges which might prevent the making a final care orders in this case? Article 39(2) provides that, 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 an 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 person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. Here, it is clear that the mother’s residual immunity did not extend to acts performed outside the course of her duties such as are engaged in these proceedings.
  7. In conclusion I find that, should I consider the children’s welfare so requires, I have the jurisdiction to make final care orders in respect of these children, all of whom have lost their entitlement to diplomatic privileges and immunities as has their mother.

 

 

In short then

 

  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 the case in question, there was criticism of the Guardian’s position and the amount of work done. (This was the LA and mother’s position about that, rather than the judicial conclusion)

 

  1. I record that the Children’s Guardian has been criticised by the mother and the local authority. These criticisms were in effect (a) that she failed to meet with the children’s mother until August 2017 at which time the proceedings had been ongoing for many months; (b) in consequence, she had an inadequate understanding of the mother; (c) further, she had an inadequate understanding of the home circumstances and any change in those by not meeting with C, the children’s older sister, until 3 February 2018; (d) she entertained an unrealistic doubt in the mother’s obligation to return to X; and (e) she had a belief that X was a dangerous country per se where any children should not be required to live regardless of the quality of parenting they might receive. It was asserted that, for those reasons, I should approach her evidence with a considerable degree of caution.

 

 

The Court’s take was

 

  1. Although the Children’s Guardian’s recommendation was based on welfare considerations, with any impact of the children’s immigration status being consequential, the making of a final care order in relation to S on the basis that, should the mother be required to return to X, he would return to long-term foster care for the remainder of his childhood was a wholly disproportionate outcome. It was founded on an evidential basis about the risks in X which was not established to the relevant standard of proof and it represented, on one view, the making of an order which had the impermissible effect of depriving the Secretary of State for the Home Department of her power to remove S from the UK. As contended for by the Children’s Guardian, final care orders with a contingency plan for long-term foster care which precluded the return of all three children to X were also, in my view, impermissible for the same reasons.
  2. Though I understand the concerns expressed by the Children’s Guardian in this difficult and finely balanced case, I have concluded that she sought to protect the children from both their mother and their homeland and, in so doing, lost sight of the children’s welfare in the short, medium and long-term. Her evidence focused on the negatives in the relationship between the mother and children rather than attempting to balance these against the positive changes achieved by the mother during the entirety of the legal process. In coming to this conclusion, I do not accept all of the criticisms made of the Children’s Guardian by Miss McKenna though I was persuaded by her overall submission that I should be circumspect about accepting the recommendations made by the Children’s Guardian.

 

The children would be returning to the mother under a rehabilitation plan, and going back to X in due course, under no statutory orders.

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A sham of a mockery of a travesty of two mockeries of a sham (diplomatic immunity)

 

I always love a diplomatic immunity case.

This is the Court of Appeal’s decision in Al-Juffari v Estrada 2016

https://www.judiciary.gov.uk/wp-content/uploads/2016/03/approved_judgment_rhd_estrada_v_juffali.pdf

 

and is the one that sent our much-beloved (Subs, check this please) Foreign Secretary off crying to the Guardian and other places because we can’t have our naughty English Courts inconveniencing Saudi billionaires or where will it end?

http://www.theguardian.com/law/2016/mar/22/hammond-criticises-judge-for-stripping-diplomatic-immunity-from-saudi-billionaire

Anyway, this relates to the claim by the Wife for a divorce in this country, and for a financial settlement. As the one detail that leapt out at me was the value of the former matrimonial home being about £100 million, one can see why.

Mr Al-Juffari claimed that the Court had no jurisdiction, because he was appointed by Saudi Arabia as the Permanent Representative of St Lucia.

At first instance, Hayden J made two decisions – first that in looking at this diplomatic immunity, the facts were that Mr Al-Juffari had not actually ever carried out any functions AT ALL in this role and this it was an

 

“artificial construct” designed to defeat the jurisdiction of the court;

This seems on the facts, quite reasonable to me. If you’re relying on a job to be your get out of jail card, at least have the decency to actually be doing that job. Otherwise it’s like playing Monopoly with someone who has at their immediate beck and call a printing firm to produce facsimile Get out of Jail cards as and when required.

[As a little tip, just don’t play Monopoly with Saudi billionaires – they are in a position to buy up Waddingtons*, and demand an immediate rule change in their favour be hand-delivered to every owner of a Monopoly set if they are losing.   * Now Hasbro. Grrr. On the plus side, the Dubai version of Monopoly has some truly amazing hotels. ]

 

Having referred to a number of cases in which the compatibility of the grant of immunity from jurisdiction with Article 6 of the European Convention of Human Rights (“the ECHR”) has been considered, the judge concluded at para 34:

“The cumulative impact of this case law is, in my judgement, to identify a balance that has evolved, designed to protect the ‘functionality’ or ‘effectiveness’ of a mission and to recognise the need to minimise abuse of diplomatic immunity. It is this balance which both underlies the policy considerations and establishes the proportionality of the restriction in ECHR terms. If ‘functionality’ is extracted from the equation, because no functions have been discharged or, to adopt Diplock LJ’s terms, the diplomat is not ‘en poste’, there can remain only unjustified privilege or immunity linked solely to the private activities of an individual. If such is the case both the policy considerations and the proportionality of restriction cannot be justified in Convention terms and cannot be said to pursue a legitimate claim sufficient to eclipse W’s right of access to a court.”

21.

The reference to Diplock LJ was to Empson v Smith [1966] 1 QB 426 at p 429C. At para 35(vi) of his judgment, the judge found that since his appointment, “H has not undertaken any duties of any kind in the pursuit of functions of office”. He said that W had provided persuasive evidence that H’s health was such that he was not in a position at present to fulfil any ambassadorial duties. At para 36, he said:

“H has sought and obtained a diplomatic appointment with the sole intention of defeating W’s claims consequent on the breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct. I draw back from describing it as a ‘sham’, mindful of the forensic precision required to support such a conclusion.”

22.

At para 40, he said that he was “not prepared to accede to H’s request to strike out W’s Part III claim on his spurious assertion of diplomatic immunity, as I find it to be.”

 

However, the Court of Appeal had to disagree  (not that it was an artificial construct, but that the English Court had jurisdiction to inspect what was going on, rather than just taking the word of the Foreign Office that a person has diplomatic immunity)

 

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. I have set out at para 18 above the facts the truth of which is conclusively proved by the certificate in the present case. If the immunity of a Permanent Representative or diplomatic agent depends on establishing whether he has in fact performed the relevant diplomatic functions, then the certificate issued in this case is of little value. It does not purport to say anything about the functions performed by H. That is not surprising. 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 [1939] AC 256, 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.”

 

 

As the FCP had provided a certificate saying that Mr Al-Juffari had immunity, that was the end of it.

 

The second question that Hayden J had to decide was whether Mr Al-Juffari was permanently resident in England. Why is that important? Well, because the  Specialised Agencies Convention and the Headquarters Agreement which governs what rights, privileges and immunities a person who is a Permanent Representative has says this:-

 

“(1) Every person designated by a Member of the Organisation as its Permanent Representative or Acting Permanent Representative and the resident members of its mission of diplomatic rank shall enjoy, for the term of their business with the Organisation, the privileges and immunities set out in Article V, Section 13 of the [Specialised Agencies Convention].

and

(2A) In addition to the immunities and privileges specified in paragraphs (1) and (2) of the article, the Permanent Representative and acting Permanent Representative shall enjoy, in respect of themselves and members of their families forming part of their households, for the terms of their business with the Organisation, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

but

(5)…Paragraphs (2) and (2A) shall not apply to any person who is permanently resident in the United Kingdom; paragraphs (1) and (2A) shall only apply to a person so resident while exercising his official functions. “

So if Mr Al-Juffari was permanently resident in the United Kingdom, he would only be immune for actions undertaken as part of his official functions (and as we’ve already established, he hasn’t done any. He certainly didn’t marry his wife as part of those functions)

On the facts, it seemed to me rather dubious that he was permanently resident in the United Kingdom

H was born in the Lebanon in 1955. He is a Saudi national and domiciled in Saudi Arabia. He is a member of a large Saudi family of immeasurable wealth. The family has, throughout his life, had a close connection with the UK. In particular, a substantial property, Bishopsgate House, near Windsor Great Park was bought many years ago by H’s father as a family estate for use in summer holidays. The family also had a flat in London. For a time H attended Oxford University before going on to university in the US.

71.

For many years H has had a visa which enables him to spend 180 days in the UK each year without compromising his non-resident tax status. In common with men of his wealth and background, he crosses and re-crosses the world, largely by private jet, staying in properties in various countries owned by, or on his behalf, through elaborate financial structures. The figures produced by Mr Alammari show the division of H’s time over recent years to have been largely spent between Saudi Arabia, Switzerland and the UK; the majority of his time over the period being spent in Switzerland closely followed by Saudi Arabia.

Can one really be permanently resident in a country where the visa only allows you to spend 180 days there? Note also the lack of time in St Lucia…

However,

H has been married three times. His first marriage in 1980, was to Basma Sulaiman, a Saudi national. There were three children by that marriage, M, D & H; each of whom (in common with all H’s children) were born at the Portland Hospital in London. It is common ground that at least the eldest of those children has a British passport.

73. Critical to his ultimate finding that H was permanently resident in the UK, the judge found in relation to this marriage (as with each of his marriages) that ‘the family home was based in the UK’ and that the children were educated in England and speak English.

 

In his overall analysis, Hayden J reached this conclusion that the choice of Mr Al-Juffari as to where to raise his children was a magnetic factor, and thus he concluded that Mr Al-Juffari was permanently resident in England.  (I think he’s about as permanently resident in England as Sean Connery is permanently resident in Scotland, but the Court of Appeal say otherwise)

 

“65. In my survey of the background of H’s life (at para 51, above) I have endeavoured to identify key facts which point to permanent residence being established either in Saudi Arabia or in the UK. The fact that H does not enjoy leave to remain in the UK and that he is only permitted to visit for 180 days per year seems to drag the conclusion towards Saudi Arabia. Mr Pointer’s team have spent considerable time and effort drawing up a table setting out the number of nights H has spent in the UK on a yearly basis since 2009. That data has been further refined to include the average duration of trips to the UK and also the unbroken sequence of days spent here. This is helpful so far as it goes but, in my view, a qualitative rather than quantitative assessment is likely to illuminate intention more accurately. Of all the matters identified at para 50 one is, to my mind, magnetic in its attraction. H has been married three times. On each occasion the marriage produced children. For each reconstituted family unit the family home was based in the UK. W herself is habitually resident in the UK. The children of the first two marriages have all been educated here and, inevitably, all speak English. The youngest child, now from the third marriage, is pre-school age. There are three homes in the UK.

66. Where a man chooses to live with his wife and children, and I emphasise the element of choice, says a great deal, to my mind, about where he intends his home to be. When the circumstances of his life cause him to repeat that same decision throughout three marriages, it seems to me to signal an intention which is ‘unlimited in period’, to adopt Langton J’s phrase and therefore to qualify as permanent. I very much agree with Mr Pointer that both the case law and the Circular require me to give significant weight to H’s intentions but I have, on the facts of this case, come to a different conclusion from that contended by Mr Pointer. The evidence points very strongly, in my view, to establishing that these were the arrangements before H’s appointment and, on the basis that past behaviour is often a reliable predictor of future intention, the status quo was likely to continue. On this basis H also fails the ‘but for’ test in Jiminez v IRC (see para 48 above). By way of completeness I should add that I have not found it necessary to deploy either Article 6 of the ECHR or section 3 of the HRA to construe the meaning of permanent residence.

And thus, Mr Al-Jaffari does not get to hide behind diplomatic immunity to defeat his wife’s divorce claim. He won on the first point (where I think the facts were completely behind Hayden J but the law wasn’t) but lost on the second point (where I think the facts were pretty iffy but the law backed Hayden J up)

For the reasons that I have given, I consider that the judge was wrong to hold that H is not entitled in principle to immunity from W’s claim. But the judge was entitled to conclude on the facts that H is not entitled to immunity because he is permanently resident in the UK and the claim does not relate to any official acts performed by H in the exercise of his functions. I would dismiss the appeal. It is, therefore, unnecessary to consider the issues raised by the Respondent’s Notice.

 

The right outcome, although by a peculiar route. Having said that, I’m SURE Mr Al-Jaffari will appeal to the Supreme Court. The legal costs are miniscule compared to the sums that are being litigated here.

 

 

 

 

 

 

Diplomatic immunity – it’s just been revoked

 

 

Well, it hasn’t been revoked, but who wouldn’t want the chance to see the classic Lethal Weapon 2 exchange?

 

https://www.youtube.com/watch?v=kwC_IaY3BmY

 

 

[If any ancillary relief Judge wants to quip in a case involving a millionaire farmer – “You want to be a farmer? Well here’s a couple of acres” then you’d be doing me a solid. Failing that, I’d settle for a “Get to the chopper” line for a case involving a TV chef]

 

https://www.youtube.com/watch?v=-9-Te-DPbSE

 

This case involves a child whose father has taken one of two twins (I know, that seems redundant, twins do tend to come in twos, but ‘one child of twins’ doesn’t seem great either) to another unnamed country, whilst the other remains with his mother in England.

 

The mother obtained an order for the return of that child. The father asserted diplomatic immunity.

 

I would love to be able to assert diplomatic immunity. If there’s a country out there who wants a diplomat, a country that is prepared to accept that I would almost certainly abuse that privilege, then give me a call. I would be prepared to learn another language (at least to the extent of “sorry sucker, I’m afraid I’ve got diplomatic immunity” in said language)

 

Re MA and Another 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4730.html

 

There was some debate about whether diplomatic immunity only extended to things which occurred during the carrying out of professional duties or all things, but it is settled as being complete immunity from arrest or detention.

 

A feature of the case is that the father has asserted diplomatic immunity, pursuant to the Vienna Convention on Diplomatic Immunity, incorporated by the Diplomatic Privileges Act of 1964. It appeared, following the father’s arrest on 14 October 2014, that whilst the diplomatic protection the father enjoys is in effect full immunity from the criminal jurisdiction and in the civil and administrative jurisdiction, it was limited to acts performed only within the course of his duties. As matters have evolved it seems the scope of his protection is more extensive and he remains, it is asserted, inviolable at all time to any form of arrest or detention.

 

 

 

The High Court may retain some powers under the inherent jurisdiction to ask him to think very carefully about what he’s done and why he should say sorry, but that’s about it. Also, I’m adding ‘inviolable’ to a growing list of words I don’t want to try to pronounce for the first time in Court.

 

The father didn’t attend the hearing. He did produce a statement, which the Court wasn’t very impressed with. It wasn’t in a recognisable format and they did not think that a lawyer had been involved in its preparation.

 

[my personal speculation was that his statement was just “sorry suckers, I’m afraid I’ve got diplomatic immunity” in Guarani. Or alternatively, just a CD with a loop of Billy Bragg singing the “your laws do not apply to me” bit from Sexuality]

 

and the Court decided to proceed in his absence and hear evidence from the mother. They repeated the order that he should return the child to the jurisdiction and that the child was wrongfully removed from the mother’s care and out of the jurisdiction.

 

That’s an order that is somewhat toothless, since there is no punishment that the Court can levy against him if he decides not to comply. It is still the right thing to make the order.

 

Enforcement of it is going to be very difficult indeed. Let’s hope that these twins are reunited without any further litigation.