A Local Authority v X & Ors

Under Article 39(2) of the Vienna Convention on Diplomatic Relations 1961, the reasonable period during which diplomatic privileges and immunities continue after functions end is ultimately a matter for the court where disputed. It must be assessed by reference to the purposes of diplomatic immunity and the efficient performance of diplomatic functions. A Foreign and Commonwealth Office certificate is highly relevant but is not conclusive on that mixed question of fact and law.

Minor dependent children remain members of a diplomat’s household despite temporary foster placement during care proceedings. Diplomatic immunity does not prevent the court making or enforcing care orders where the relevant conduct falls outside the diplomat’s official duties. In welfare proceedings, family rehabilitation may be preferred where separation would cause grave and foreseeable harm and long-term public care has not been shown necessary.

The local authority brought public law proceedings concerning four children whose mother had held diplomatic status as a member of the administrative and technical staff of a foreign High Commission. The threshold criteria had been conceded. The court first determined whether the mother and children retained diplomatic privileges and immunities, whether the children remained members of her household while in foster care, and whether immunity affected the court’s jurisdiction to make or enforce care orders.

The court then considered the competing welfare options: rehabilitation to the mother’s care, or final care orders followed by longer-term foster care, potentially separating the children from their mother, country and culture if she returned abroad. The central issue was whether making no public law order was better for the children than making an order.

1. The February 2018 certificate under s 4 of the Diplomatic Privileges Act 1964 conclusively established the certified facts, including the termination of the mother’s functions. It did not itself determine the legal question whether the period allowed under Article 39(2) of the Vienna Convention on Diplomatic Relations 1961 was reasonable. That question was for the court to scrutinise and determine.

2. The reasonable period had to be assessed strictly and exclusively by reference to the duration and purposes of diplomatic privileges and immunities. The Foreign and Commonwealth Office policy allowing 31 days was highly relevant because it reflected the Executive’s experience of diplomatic relations, although it was not legally conclusive.

3. The children remained dependent minor children forming part of the mother’s household under Article 37(2), notwithstanding their temporary placement with foster carers during proceedings. An interim care order or temporary non-residence did not produce arbitrary changes in diplomatic status. The mother and children’s privileges and immunities ended on 31 January 2018.

4. Diplomatic immunity did not deprive the Family Division of jurisdiction to make care orders. The reasoning in Re B (Care Proceedings: Diplomatic Immunity) was adopted. Any practical limits on enforcement did not prevent orders being made. Article 31(3) did not prohibit enforcement in respect of conduct outside the mother’s official duties, and foster care did not amount to detention or breach Article 29.

5. The children’s welfare was paramount under s 1(1) of the Children Act 1989. The evidence did not establish that return to the mother’s care or return to the foreign country would expose them to the relevant risks on the balance of probabilities. The risk of physical and emotional harm had reduced, and further therapeutic and parenting work was likely to have a positive outcome.

6. The finely balanced welfare exercise favoured rehabilitation to the mother rather than final care orders. Long-term foster care risked severing family relationships, separating the siblings, and substantially weakening their cultural and familial ties. Those consequences had not been shown necessary. Making no order was better for the children than making any public law order. The local authority was directed to undertake intensive rehabilitation work, and any immigration extension was a matter for the Secretary of State.

First instance decision of the High Court (Family Division). No appellate history was stated in the judgment.