AG (A Child), Re

The Court of Appeal considered whether the Diplomatic Privileges Act 1964 (implementing the Vienna Convention on Diplomatic Relations 1961) is incompatible with article 3 of the European Convention on Human Rights because diplomatic immunity prevented effective child-protection measures. The court accepted that article 3 imposes a positive systems obligation to establish a framework of laws, precautions, procedures and means of enforcement to protect children to the greatest extent reasonably practicable, and that the Children Act 1989 implements such a system. It held, however, that the immunities in the Vienna Convention operate as immunities from suit rather than removing legal liability and that the Convention itself contains mechanisms (waiver, persona non grata, recall, and protection by the sending state) which, in the consensual framework of international relations, are the practicable means of protection.

Applying established authorities about the domestic court's duty of restraint in novel questions of Strasbourg law (including AB and Ullah principles), the court concluded there was no clear line of ECtHR authority that would require a member state to breach or seek to amend the Vienna Convention in order to comply with article 3. For that reason the Divisional Court was right to refuse a declaration of incompatibility under section 4 of the Human Rights Act 1998, and the appeal was dismissed.

This appeal arose from care and child-protection proceedings concerning AG and her siblings who suffered severe physical and psychological abuse while resident in the United Kingdom in a household where the father was an accredited diplomat. The local authority (the London Borough of Barnet) sought protective orders under the Children Act 1989 but were impeded by assertions of diplomatic immunity. Barnet therefore applied for a declaration of incompatibility under section 4 of the Human Rights Act 1998, contending that section 2 of the Diplomatic Privileges Act 1964 and articles 31 and 37 of the Vienna Convention on Diplomatic Relations 1961 were incompatible with articles 1 and 3 of the ECHR.

The procedural history included interim High Court decisions by Mostyn J (including A Local Authority v. AG [2020] 3 WLR 133 and A Local Authority v. AG (No. 2) [2020] EWHC 1346 (Fam)), recall of the diplomat by his sending state, asylum claims by older children and a care order for AG. The Divisional Court dismissed the incompatibility application (London Borough of Barnet v. AG [2021] 3 WLR 875). The present appeal challenged that result.

The court framed the issues as: (i) the precise content of the article 3 'systems' obligation; (ii) whether the Divisional Court was right that there was no conflict between the ECHR and the DPA/VCDR; (iii) whether article 3 or ECtHR jurisprudence required the UK to breach the VCDR; and (iv) if there were a conflict, whether a declaration should be made.

The court accepted that article 3 imposes a positive systems duty to create an effective framework of protection for children "to the greatest extent reasonably practicable", but emphasised that the obligation is qualified by what is reasonably practicable and proportionate. It held that although the VCDR's immunities reduced the practical reach of domestic coercive measures under the Children Act, the VCDR provides internationally-agreed mechanisms (waiver, recall, persona non grata, and sending-state protection) which are the practical means of protecting children in diplomat households. Applying the principle that domestic courts should not go further than they can be fully confident the European Court of Human Rights would go (per Ullah / AB), and finding no clear ECtHR authority that article 3 requires overriding the Vienna Convention, the court concluded it was not open to a domestic court to declare the DPA/VCDR incompatible with article 3. The court therefore dismissed the appeal and upheld the Divisional Court's refusal to make a declaration of incompatibility.

Appeal dismissed. The court concluded that although article 3 imposes a positive systems obligation to protect children, that obligation is qualified by what is reasonably practicable and does not, on the present state of ECtHR jurisprudence, require the United Kingdom to breach or seek to amend the Vienna Convention on Diplomatic Relations. The Divisional Court was therefore correct to refuse a declaration of incompatibility under section 4 of the Human Rights Act 1998.

High Court (Mostyn J): A Local Authority v. AG [2020] 3 WLR 133 (interim judgments); A Local Authority v. AG (No.2) [2020] EWHC 1346 (Fam) (permission to bring incompatibility challenge). Divisional Court: London Borough of Barnet v. AG [2021] 3 WLR 875 (application for declaration of incompatibility dismissed). Court of Appeal: AG (A Child), Re [2022] EWCA Civ 1505 (appeal dismissed).