AG (A Child), Re

The systems duty under article 3 of the European Convention on Human Rights requires a framework of laws, precautions, procedures and enforcement measures protecting children from private ill-treatment to the greatest extent reasonably practicable. It is distinct from the operational duty not to inflict ill-treatment.

The duty does not require the United Kingdom to breach, or seek amendment of, the Vienna Convention on Diplomatic Relations. In the absence of clear Strasbourg authority that diplomatic immunities must yield, the domestic court must take account of established international law and the serious consequences for reciprocal diplomatic relations. The Diplomatic Privileges Act 1964 and the Convention were therefore not incompatible with articles 1 and 3.

Six children were subjected to severe physical and psychological abuse by their parents while their father was an accredited diplomat living in the United Kingdom. The London Borough of Barnet investigated safeguarding referrals and sought protective orders under the Children Act 1989, but diplomatic immunity restricted the coercive measures available against the parents.

After the family left the United Kingdom, Barnet applied for a declaration that section 2 of the Diplomatic Privileges Act 1964, together with articles 31 and 37 of the Vienna Convention on Diplomatic Relations, was incompatible with articles 1 and 3 of the European Convention on Human Rights. The Divisional Court refused the declaration: [2021] 3 WLR 875. The central issues were the content of the article 3 systems duty, its relationship with diplomatic immunity, and whether a declaration should be made.

1. Appeal dismissed. The Court of Appeal upheld the Divisional Court’s refusal to make a declaration of incompatibility.
2. The article 3 systems duty requires a framework of laws, precautions, procedures and means of enforcement protecting children from private torture or inhuman or degrading treatment to the greatest extent reasonably practicable. The duty is distinct from the operational duty, but the authorities establish that the systems duty is also qualified by reasonable practicability.
3. There could be a practical conflict because diplomatic immunity reduces the effectiveness of the coercive protective framework otherwise available under the Children Act 1989. The decisive question was whether article 3 required the United Kingdom to breach or seek amendment of the Vienna Convention on Diplomatic Relations.
4. Applying R (AB) v Secretary of State for Justice, the domestic court could not extend Strasbourg law beyond a point of which it was fully confident that the European Court of Human Rights would approve. The Strasbourg authorities supported harmonious interpretation of the European Convention with other international law, but did not establish that article 3 overrode diplomatic immunities.
5. The Vienna Convention reflected long-established customary international law and contained mechanisms including waiver of immunity, recall and declaration of persona non grata. Those mechanisms were less effective than coercive orders, but it was not reasonably practicable to require the United Kingdom to breach or amend the Convention. The systems duty was consequently not incompatible with it.
6. Even assuming a practical conflict, the court would not exercise its discretion under section 4 of the Human Rights Act 1998 to make a declaration of incompatibility.

1. Court of Appeal (Civil Division): AG’s appeal was dismissed and the Divisional Court’s refusal to make a declaration of incompatibility was upheld: [2022] EWCA Civ 1505.
2. High Court of Justice, Family Division (Divisional Court): the application for a declaration of incompatibility was dismissed on 13 May 2021: [2021] 3 WLR 875.
3. High Court of Justice, Family Division: Mostyn J stayed the protective proceedings and expressed a provisional view that the relevant diplomatic immunities were irreconcilable with articles 1 and 3. The proceedings and later application are reported at [2020] 3 WLR 133 and [2020] EWHC 1346 (Fam).