Does diplomatic immunity extend to human rights violations committed by members of diplomatic missions within the UK? In a unique case concerning a diplomat who was alleged to have subjected his children to a regime of harmful chastisement, the High Court has reluctantly answered that question in the affirmative.
Some of the diplomat’s six children had told their teachers and social workers that their parents subjected them to various forms of cruel punishment, including what they described as ‘lashings’. A local authority’s response was to launch care proceedings in respect of the youngest three, aged five, nine and 14.
The diplomat denied that there was any truth in his children’s claims and argued that, by virtue of the diplomatic immunity he and his family enjoyed under the 1962 Vienna Convention, the Court had no power to entertain the council’s application for interim care orders under the Children Act 1989.
The council argued that the Vienna Convention and the Diplomatic Privileges Act 1964 should be read consistently with the European Convention on Human Rights (ECHR). That, it was submitted, should result in an exception to diplomatic immunity being created in respect of public law applications to protect children or vulnerable adults at risk within diplomatic households.
Ruling on the matter, the Court noted that the council had put forward a formidable case that the three children had been caused deliberate harm, both physical and psychological. Were it not for the family’s diplomatic immunity, interim care orders would almost certainly have been granted.
In staying the care proceedings, however, the Court noted that the principle of immunity for serving diplomats and their families has its roots in antiquity and is one of the most important tenets of civilised and peaceable relations between nation states. The novel exception to immunity contended for by the council would stray well beyond the bounds of statutory interpretation in that it would conflict with the plain, natural and literal meaning of the relevant provisions of the Diplomatic Privileges Act.
Urging that consideration be given to amending the terms of the Vienna Convention, the Court noted that the case exposed a glaring inconsistency between diplomatic immunity and the ECHR which created an almost insoluble dilemma. In an extreme scenario, police officers would be prevented from entering a diplomat’s home even to rescue a child at imminent risk of death or serious bodily harm.
The Court also expressed the view that, insofar as the Diplomatic Privileges Act prevents protective measures being taken in respect of diplomats’ children, its provisions are irreconcilable with the duties imposed on the state by the ECHR.
The fact that care proceedings could not be brought, however, did not mean that the British authorities were powerless. It was open to the Foreign and Commonwealth Office to bring pressure to bear on the foreign government to waive the diplomat’s immunity or, as a last resort, he and his family could be expelled from the country so that measures to protect the children could be taken in their homeland.