Diplomatic Immunity and Human Rights

22 November, 2022

The Court of Appeal has handed down judgment in London Borough of Barnet v AG (A Child) & Secretary of State for Foreign, Commonwealth and Development Affairs [2022] EWCA Civ 1505.

The case considers whether the grant of diplomatic immunity in respect of care proceedings regarding children is compatible with Article 3 of the European Convention on Human Rights.

The London Borough of Barnet had sought care orders in respect of a diplomat’s children. The proceedings were stayed by Mr Justice Mostyn because of diplomatic immunity. However, given the importance of the issues involved, Mostyn J granted permission for LB Barnet to seek a declaration of incompatibility under s. 4 of the Human Rights Act 1998: viz, for a declaration that various provisions of the Diplomatic Privileges Act 1964, which gives domestic effect to the Vienna Convention on Diplomatic Relations 1961, are incompatible with ECHR rights.

The case concerns, in particular, the requirements of Article 3 ECHR and the relationship between the ECHR and other rules of international law, including the UN Convention on the Rights of the Child and the Vienna Convention on Diplomatic Relations.

The Divisional Court dismissed the application.  One of the children involved appealed. The Court of Appeal (Vos MR, Moylan and Baker L JJ) dismissed the appeal.

Peter Webster was instructed by HB Public Law on behalf of the London Borough of Barnet, as were Hannah Markham KC and Ms Kate Tomkins. Professor Dan Sarooshi KC also appeared for the London Borough of Barnet in the Divisional Court.

Professor Vaughan Lowe KC was instructed by the Government Legal Department on behalf of the Secretary of State for Foreign, Commonwealth and Development Affairs,  as were Sir James Eadie KC, Ms Joanne Clement KC, Ms Belinda McRae and Mr Jason Pobjoy.