London Borough of Barnet v AG & Ors

Diplomatic immunity under the Diplomatic Privileges Act 1964 and the Vienna Convention on Diplomatic Relations is not incompatible with Articles 3 or 6 ECHR merely because it restricts child-protection investigations or proceedings. The Convention is a specific, comprehensive and reciprocal code. It cannot be read as containing an additional child-protection exception, whether through section 3 of the Human Rights Act 1998 or by reference to the UNCRC.

The positive obligations under Article 3 are qualified by reasonableness, proportionality, practical constraints and other international obligations. They do not require the United Kingdom to breach the VCDR. The application for a declaration of incompatibility was dismissed.

The local authority sought a declaration that diplomatic immunity under section 2 of the Diplomatic Privileges Act 1964, incorporating relevant VCDR provisions, was incompatible with Articles 1, 3 and 6 ECHR insofar as it prevented protective measures for children of diplomats.

The proceedings followed Mostyn J’s refusal to make an interim care order because the diplomat and family were immune from the jurisdiction. After a waiver request was refused, the diplomat and family were recalled and declared persona non grata. The central issues were whether the DPA/VCDR conflicted with Articles 3 or 6, whether section 3 HRA could resolve any conflict, and whether a declaration under section 4 HRA should be made.

1. The application for a declaration of incompatibility was dismissed. The court held that the material provisions of the DPA and VCDR were not incompatible with Articles 3 or 6 ECHR.
2. The VCDR is a specific and comprehensive international code governing diplomatic immunity, including the position of family members. Its text, context, purpose, uniform operation and reciprocal character precluded implying an additional exception for child protection. The general protections in the ECHR and UNCRC could not displace that specific regime.
3. Article 3 imposes positive investigative and protective obligations, but those obligations are qualified. They require measures which are reasonable and proportionate in all the circumstances, having regard to practical constraints, due process, resources and other international obligations. They did not require the United Kingdom to act in breach of the VCDR.
4. The Children Act framework remained applicable in principle, and diplomatic immunity did not leave children wholly without protection. Waiver, recall, persona non grata measures and action by the sending state could provide protection consistently with the VCDR.
5. The immunity was a procedural immunity from jurisdiction, not immunity from liability. Under Article 6, a restriction reflecting generally recognised rules of public international law was proportionate. The court was required to apply the VCDR rather than reconsider whether the immunity was tenable.
6. Section 3 HRA could not be used to create a new exception to immunity. Such an interpretation would depart from the natural meaning and fundamental purpose of the DPA/VCDR and would cross the boundary between interpretation and legislation.
7. The court declined to give an advisory ruling on the precise scope of inviolability under Articles 29 and 30 without a concrete factual case requiring decision. It observed that voluntary cooperation by a Gillick-competent child might be possible, but that exceptional breaches of inviolability were unlikely to have practical utility in ordinary child-protection cases.

First-instance proceedings. The judgment records earlier decisions of Mostyn J, including the refusal of an interim care order and the grant of permission for the incompatibility proceedings, but this court was not hearing an appeal from those decisions.