The local authority issued proceedings under section 31 of the Children Act 1989 seeking interim care orders in respect of three children, aged five, nine and 14, following allegations of physical abuse by the mother and father, a serving diplomat. The oldest daughter, aged 18, had contacted the local authority to report that her siblings were being abusively chastised at home, information which the younger children confirmed in interviews. It was common ground that neither the diplomat nor members of his family could waive diplomatic immunity, since only the government of the sending state could do so, and it was also common ground that none of the stated exceptions in article 31(1) of the V1. Al-Malki v Reyes ienna Convention on Diplomatic Relations, as scheduled to the Diplomatic Privileges Act 1964, applied. However, the local authority and the children’s guardian contended that those provisions should be interpreted pursuant to section 3 of the Human Rights Act 1998 so as to read in another exception, namely a public law application to protect children or vulnerable adults at risk within a diplomat's family forming part of his household, a process which would not be inconsistent with the 1969 Vienna Convention on the Law of Treaties since articles 31(2)(b) and (c) of that Convention permitted later practices and later developments in international law to be taken into account when interpreting a Convention provision. The question of the immunity of the father, and of members of his family forming his household, from civil proceedings required determination as a preliminary issue.
On the preliminary issue—
Held, application stayed. Section 3 of the Human Rights Act 1998 required the court, so far as it was possible to do so, to read and give effect to primary legislation in a way which was compatible with rights under the Convention for the Protection of Human Rights and Fundamental Freedoms. However, that did not give the court an unfettered power to rewrite legislation to include words which Parliament had wittingly or unwittingly excluded. The innovation proposed here passed well beyond the boundary of interpretation since: (i) it violated the plain, natural literal meaning of the words in article 31 of Schedule 1 to the Diplomatic Privileges Act 1964 where the exceptions had been framed after considerable debate and were obviously intended to be a finite list and the principle of construction inclusio unius exclusio alterius meant that a construer could not infer an additional tacit exception based on safeguarding children at risk; (ii) the Vienna Convention had to mean the same thing in all 191 states which had signed it, the majority of which would not have subscribed to the Human Rights Convention and would no doubt find it most surprising that there existed a tacit exception based on safeguarding children at risk; (iii) the foundation of the Vienna Convention was the idea of reciprocity and a significant purpose of conferring diplomatic immunity on foreign diplomatic personnel in Britain was to ensure that British diplomatic personnel overseas enjoyed corresponding immunities; (iv) the principle of immunity for serving diplomats and their families was one of the most important tenets of civilised and peaceable relations between nation states and the fact that it might be abused was a price that had to be paid in order to uphold the higher principle. The court was therefore regretfully driven to conclude that by virtue of the parents’ diplomatic immunity the proceedings could not proceed. They would not be dismissed because there was an outstanding a request by the children’s guardian that the foreign government waive the diplomatic immunity enjoyed by the family so that the children could be properly protected in proceedings under Part IV of the 1989 Act; and if that waiver were to be granted the stay could be lifted and the proceedings revived (paras 32, 34, 46, 48, 50).
Per curiam. The fact that proceedings cannot take place does not mean that there is nothing that the organs of the British state can do to discharge its duty under articles 1 and 3 of the Human Rights Convention. There are diplomatic and other steps which may be taken. First, it is open in a case such as this for a local authority to write to the Foreign and Commonwealth Office drawing the facts to the attention of the Secretary of State and inviting him to take such diplomatic steps as may be necessary. Second, it is open to the Secretary of State for Foreign and Commonwealth Affairs, on receipt of that information, to seek to persuade the foreign government to waive diplomatic immunity in respect of the diplomat and his family so that the necessary protective measures can be taken. Third, as a last resort, it is open to the British Government to expel the diplomat and his family so that on their return to their homeland protective measures can be taken in respect of the children there (paras 47, 48).
Hannah Markham QC and Kate Tompkins (instructed by HB Public Law) for the local authority.
Gemma Taylor QC and Gemma Farrington (instructed by Astrea Law) for the father.
Damian Woodward-Carlton QC and Jennifer Youngs (instructed by Corper Solicitors) for the mother.
Jo Delahunty QC and Lucy Logan Green (instructed by Creightons and Partners) for the children by the children’s guardian.
Emeka Pipi, standing counsel for the diplomatic mission, acting as observer.