A London Borough v X & Ors (Care Proceedings Jurisdiction Diplomatic Immunity)

Diplomatic immunity does not prevent the family court determining care proceedings or making final care orders where the relevant immunity has ended. A Foreign and Commonwealth Office certificate under the Diplomatic Privileges Act 1964 is conclusive evidence of certified facts, but not necessarily of a mixed question of fact and law such as the reasonable period under Article 39(2) of the Vienna Convention. That period must be assessed by reference to diplomatic relations and the purpose of diplomatic immunity.

Minor dependent children remain members of a diplomat’s household despite temporary foster placement or interim care orders. In welfare decisions, the children’s welfare remains paramount. Immigration or diplomatic considerations cannot determine the outcome, and the court must compare realistic options, including the consequences of separation from family, culture and country.

The local authority brought public law proceedings concerning four children whose mother was a member of the administrative and technical staff of a foreign High Commission. The children had entered the United Kingdom with diplomatic privileges and immunities. Following allegations of physical and emotional abuse, the children were placed in foster care and interim care orders were made in respect of the younger children.

The court separately considered the effect of the mother’s recall to her country, an FCO certificate stating that her diplomatic functions ended on 31 December 2017 and that her privileges and immunities ended on 31 January 2018, the children’s household status, and whether diplomatic immunity affected the court’s jurisdiction or enforcement powers. It then determined the welfare outcome for S, E and SL.

1. Diplomatic status. Section 4 of the Diplomatic Privileges Act 1964 made the FCO certificate conclusive evidence of certified facts, including the end of the mother’s functions. The certificate did not itself determine the legal question of what constituted a reasonable period under Article 39(2) of the Vienna Convention. That question was for the court. The relevant period had to be assessed exclusively by reference to diplomatic privileges, immunities and the proper functioning of diplomatic relations. The FCO’s 31-day policy was highly relevant. The mother’s and children’s privileges and immunities ended on 31 January 2018.
2. Children’s household status. Minor dependent children remained members of the mother’s household despite temporary foster placement, section 20 accommodation or interim care orders. A contrary construction would create arbitrary changes in diplomatic status during unresolved care proceedings and undermine the protective purpose of Article 37(2).
3. Jurisdiction and enforcement. Diplomatic immunity did not deprive the family court of jurisdiction to make care orders. The reasoning in Re B (Care Proceedings: Diplomatic Immunity) was adopted. The possibility of limits on enforcement did not prevent orders being made. Enforcement of care orders was compatible with Articles 29, 31 and 37 of the Convention, particularly because the alleged conduct was outside the mother’s official duties. Foster care did not amount to detention or deprivation of liberty contrary to Article 29.
4. Welfare. The children’s welfare was paramount under section 1 of the Children Act 1989. The court rejected reliance on unproved risks arising from conditions in the mother’s country. The mother’s positive changes reduced, but did not eliminate, the risks of physical and emotional harm. Nevertheless, separation from the mother, family, culture and country, together with the risks of long-term foster care, outweighed the disadvantages of a managed rehabilitation.
5. Disposition. Making no order was better for the children than making a public law order. The local authority was to undertake intensive work to return the children to their mother’s care as soon as possible. Any extension of permission to remain in the United Kingdom was a matter for the Secretary of State, not the court.