O, Re (A Child: The Vienna Convention on Consular Relations 1963)

Article 37(b) of the Vienna Convention on Consular Relations 1963 ordinarily requires notification where a court appoints a guardian for a foreign-national child. The obligation is not absolute. Although the Convention should ordinarily be respected, notification may be withheld in a rare case where it would be contrary to the child’s welfare and best interests. The court must assess the evidence and may make a declaration that non-notification is lawful and proportionate.

O, a child and citizen of the Democratic Republic of the Congo, was the subject of public law care proceedings in which a children’s guardian had been appointed. The local authority had notified the Congolese embassy in general terms but sought a declaration concerning whether further notification was required.

O opposed notification because of her experiences in the DRC and her fear that disclosure could endanger her or her family. The central issue was whether Article 37(b) imposed an absolute duty to notify the Congolese authorities of her presence, the proceedings and the guardian’s appointment.

1. Article 36 of the Vienna Convention on Consular Relations 1963 was not engaged because the circumstances did not involve the relevant form of detention. Article 37(b) was engaged because a guardian had been appointed for a minor who was a national of the sending State.

2. The Convention had been ratified but had not been incorporated into domestic law. The court accepted the guidance in Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam) and Re JL and AO [2016] EWHC 440 that Article 37 ordinarily imposes a duty to inform the relevant consular authorities when a guardian is appointed.

3. That duty was not absolute. Article 37(b) expressly made notification subject to the laws and regulations of the receiving State concerning such appointments. In the vast majority of cases notification should occur, but in rare cases the court may conclude that compliance would be contrary to the child’s welfare and best interests. The court may then permit non-notification.

4. The evidence of O’s experiences, fears and opposition to notification was cogent. Notification would be wholly contrary to her welfare and best interests. It was therefore lawful and proportionate for the local authority not to notify the Congolese authorities of O’s presence in the jurisdiction, the public law proceedings or the appointment of her children’s guardian.