London Borough of Barnet v AG (A Child) and SSFCDA

The appellant, AG, lived in Barnet with her family, including her father who was a diplomat. Barnet local authorities received a safeguarding referral in November 2019 concerning AG and the other children, however AG’s parents refused to allow the local authority to speak to the children, relying on diplomatic immunity. 

Barnet ultimately applied for an emergency protection order under s.44 of the Children Act 1989 in respect of the children. Mostyn J stayed those proceedings, finding that there was a “formidable case of deliberate historic harm and risk of future harm, both physical and psychological” but giving a provisional view that: (i) the parents were immune from public law applications to protect at risk children, by virtue of the Diplomatic Privileges Act 1964 (“the DPA”) and the provisions of the Vienna Convention on Diplomatic Relations (“the VCDR”); and (ii) such immunity appeared to be incompatible with the UK’s positive obligations under Article 3, ECHR. 

The sending State refused to waive this immunity, however on 6 April 2020 the SSFCDA informed the sending State that the father and his family were personae non gratae are were therefore required to leave the UK at the first opportunity. Barnet then sought a declaration of incompatibility, which was opposed by the SSFCDA. 

The Divisional Court dismissed that application, finding that there was no conflict between the ECHR and the Diplomatic Privileges Act on the basis that the ECHR could not require the “breach of an international Convention in order that its obligation be met, let alone a Convention of global reach, well beyond the regional concerns of the ECHR” (at §98). 

On appeal, the Court of Appeal was “prepared to accept, for the sake of argument, that there could be a type of conflict” between the protective legal framework contained with the Children Act 1989, reduced as it had been to achieve compliance with the Vienna Convention on Diplomatic Relations in AG’s case, and the so-called “systems duty” under Article 3 of the ECHR (at §48). However, the Court of Appeal considered that the “ultimate question” of incompatibility depended on whether the UK was required to breach the VCDR in order to avoid breaching Article 3 of the ECHR (at §48).

Considering this issue, the Court of Appeal stated that it could not be “confident, let alone fully confident, that the ECtHR would regard the systems duty in Article 3 as overriding the long-established international law principles enshrined in the VCDR” (at §50). Sir Geoffrey Vos MR observed that there was “no previous decision of the ECtHR” to that effect (at §56) and that “if there are clues in its jurisprudence, they point in favour of the inviolability of the immunities and privileges under the VCDR” (at §57). 

The relevant provisions of the VCDR were “long-established principles of customary international law” which set up a system by which situations such as that it issue in AG’s case could be dealt with, namely by “waiver of immunity, the protection of the sending State, the declaration of individuals as personae non gratae and recall” (at §59). Whilst this system was “plainly less effective” at protecting at risk children than the coercive powers under the Children Act 1989, that did not mean this system was incompatible with Article 3, ECHR (at §60). The Court of Appeal additionally observed that non-adherence to the international framework established by the VCDR would have serious repercussions for the safety of UK diplomats abroad, endorsing the submissions made by the SSFCDA in that regard (at §61). 

The Court of Appeal therefore dismissed the appeal and refused to make a declaration of incompatibility.

Sir James Eadie KC and Jason Pobjoy acted for the Secretary of State for Foreign, Commonwealth and Development Affairs, instructed by the Government Legal Department. 

The judgment is available here.