Judge rules diplomatic immunity is no barrier to care proceedings

Adults who enjoy diplomatic immunity could still have their children taken into care, a high court judge has ruled.

In an unusual verdict published last week, Mrs Justice Knowles ruled the children of an ex-employee of an unspecified high commission could have been made subject to care orders after being physically abused by their mother.

Diplomatic staff, and their immediate families, are by convention immune from prosecution in their host nation.

But, citing a 2002 case in which the child of a foreign mission employee was apparently beaten by their family, Justice Knowles concluded that civil action relating to behaviour outside of diplomatic duties could be pursued.

“There was nothing in Article 31(1)(c) [of the Vienna Convention on Diplomatic Relations] which prevented the enforcement of care orders in public law proceedings,” the judge said. “The enforcement of such orders would, in my analysis, also be compatible with Article 29, which provides for the inviolability of the person of the diplomatic agent who shall not be liable to any form of arrest or detention.”

In the event, Justice Knowles concluded that the mother – who had stopped working for the high commission – and her children had lost their diplomatic privileges. But she stressed that the status change had no bearing on her assessment that it was within her jurisdiction to make final care orders.

In reaching a final decision – via which the children are to be allowed to return to their mother, who will have to leave the UK – the judge praised the “insightful” social worker involved with the family.

While Justice Knowles acknowledged that some concerns remained, she ruled that the risks around them losing “all familial, national and cultural ties”, should the mother return home while they remained in care in the UK, were greater.

‘Ongoing physical abuse’

The mother and her five children, one of whom is in her twenties, had come to the UK. Children’s services first became involved in 2015 after the eldest son (and second-eldest child), ‘D’, now 17, was stabbed. In 2016, he told his school of a “history of ongoing physical abuse from his mother which involved her using implements to beat him”.

He also reported that she had beaten his younger siblings, all aged 12 and below, with a belt – which two of them corroborated – and shaved one of his brothers’ heads as a punishment. The children were made subject to police protection and, when this expired, the mother voluntarily signed a Section 20 agreement for them to remain in care – though she initially denied physical abuse.

Shortly afterwards, at a meeting, she accepted some of her behaviour had been “inappropriate” but said she hadn’t realised her actions would be seen as wrong in the UK.

During 2017, the case was complicated both by legal uncertainty related to her diplomatic status, and by concerns that she was engaging with the local authority primarily to lessen the possibility of being sent home.

By autumn the local authority was intending to seek final care orders for the younger three children. These were “based on a plan for long-term foster care with a view to the children’s potential rehabilitation to the mother in the longer term” if she successfully completed therapeutic work recommended by a clinical psychologist.

But the situation changed again when the president of the mother’s country of origin informed her that she was being recalled, and that her salaried employment would cease on 31 December 2017. A subsequent certificate from the Foreign and Commonwealth Office (FCO) advised that, under the Vienna Convention, this meant that her diplomatic immunity ceased one month later.

’Committed’ social worker

While acknowledging the FCO certificate “was not per se determinative of the date when the mother ceased to enjoy diplomatic privileges and immunities”, Justice Knowles agreed those privileges ended on 31 January 2018.

She also determined, drawing from the 2002 judgment, that the children had remained dependent on their mother despite having been temporarily in the care of the local authority.

“My conclusion… avoids the risk of uncertainty in determining the status of a minor child in circumstances such as these, where the family court has not made a final determination within public law proceedings,” the judge said. “All the children thus retained [until 31 January 2018] the same privileges and immunities as their mother.”

In coming down on the side of the local authority’s argument that reconciling the children with their mother offered the least bad option, the judge praised the family’s “sensible” and “committed” social worker.

She noted the social worker’s assessment that the “risk of physical chastisement had reduced” and that there were “positive signs for the future”.

She was also critical of the children’s guardian, who continued to argue for care orders to be made, for having “focused on the negatives of the relationship” and lost sight of their long-term welfare. The judge noted, too, the difficulty of attaining a placement for the three younger children.

By the time of the hearing, the mother had not completed the rehabilitative work set out in autumn 2017, and Justice Knowles acknowledged there was now likely to be limited time for her to do so.

Nonetheless, the judge said in reaching her decision, “short-term difficulties” had to be balanced against the risk of “severing” the family relationship.

“If the mother had to leave this jurisdiction prior to all the work necessary being completed, the children should not be separated from her as it would be extremely damaging for them to lose mother, country, and culture,” the judge said.