This case concerns four children: D, S, E, and SL, between 7 and 17 years of age. All the children are nationals of X and came to the UK on 11 June 2013 with their mother ‘M’. M is also a national of X and works as a secretary for the X High Commission.
The family entered the UK with diplomatic rights and privileges arising from M’s employment at the X High Commission. The international element of this case was the reason for its allocation to the High Court. The matter was heard before Mrs Justice Knowles.
There were 2 key issues in the case; the first concerned the court’s jurisdiction to make final care orders in respect of the children if those children continued to have diplomatic immunity by reason of their mother’s employment in the X High Commission. The second consisted of classic welfare issues in children public law proceedings which requires threshold criteria to be satisfied, namely (a) whether the children could be safely returned to the care of their mother; (b) if not what their alternative placements should be; and (c) what, if any, public law orders should reinforce the court’s decision on welfare.
The father of D and the father of S, E and SL both live in X, and are not involved in these proceedings.
On 25 November 2016, D divulged to the school a history of on-going physical abuse from M which involved her using implements to beat him. He also reported that the mother used physical punishment on all the younger children. The 4 children were subsequently made subject to police protection. M signed an s.20 agreement following the expiry of the police protection on 28 November 2016 for the children to be placed in foster placements.
During the early part of 2017, D’s behaviour deteriorated. He became involved in criminal activities, was arrested on several occasions and was believed to be affiliated with a gang. The Local Authority decided to support D’s return to M as the risks of return to M were considered to be less than risks from D’s absconding and non-engagement in local authority care.
On 11 October 2017, M was recalled to X. The decision by the X High Commission is thought to have been induced by D’s criminal behaviour. In light of M’s recall, the Local Authority changed their position from seeking care orders to seeking planned rehabilitation of M if the timing of M’s recall permitted this.
On February 2018, a certificate pursuant to section 4 the Diplomatic Privileges Act 1964 was received from the Foreign and Commonwealth Office (FCO) which stated that M’s functions with the X High Commission ended on 31 December 2017 and that, as a result, her diplomatic privileges and immunities ended on 31 January 2018 along with the diplomatic privileges and immunities of her children.
The court heard evidence from a number of key witnesses and experts. These included the Local Authority’s social worker; a representative from the Keeping Families Together project; a family finding social worker; Dr Van Rooyen, a clinical psychologist appointed as an expert in these proceedings; M and the Children’s Guardian.
The court was asked by the Guardian to make final care orders in respect of S, E and SL. This was opposed by the local authority and by M.
Mrs Justice Knowles concluded that she does have the jurisdiction to make final care orders in respect of the children, all of whom she considered to have lost their entitlement to diplomatic privileges and immunities as had M. She stated in her judgment that she would have held the same even if the court had reached the conclusion that they retained their immunity.
In terms of enforceability of the order, it was held that in light of Article 31 (3) and 31 (1)(c) of the Vienna Convention on Diplomatic Relations 1961 (VCDR), there is nothing to prevent the enforcement of care orders in public law proceedings and this is also compatible with Article 29 of the VCDR.
The court further concluded it is in the best interests of the children to return to the care of M following a period of rehabilitation managed by the Local Authority.
This judgment will influence future care proceedings concerning loss of diplomatic immunity, in lieu with article 31 (3) and 31(1) (c) of the VDCR, since in this case the court ruled in favour of retaining its jurisdiction to make final care orders.
Ravi Kaur Mahey, Child Care Director at Duncan Lewis, was instructed by the First Respondent, M (Mother), in this case. Ravi has specialist experience in child abduction cases and those concerning FGM. She has held advocacy for children and adults in multiple cases in the County and High Court and she has been a member of the Law Society Children Panel since 2011.
For expert advice on any child care matter, contact Ravi on 020 3114 1102 or email her at firstname.lastname@example.org.
Duncan Lewis Child Care Department
Duncan Lewis Family & Child Care team continues to be recognised by Legal 500 for our large team which ‘covers a broad range of family cases and excels in children’s cases’. The 2017 edition applauded Duncan Lewis for its expertise in representing vulnerable clients under legal aid and we have been recognised for our niche experience in Islamic divorce.
The team has extensive expertise representing vulnerable clients under legal aid, supporting families in care proceedings. Guardians appoint us to represent children in culturally complex care cases given our diverse ethnic workforce and experience dealing with vulnerable clients in physical and emotional abuse, drug or alcohol misuse, neglect, factitious illness, rare illness and non-accidental injury matters.
For expert advice on any child care matter, please call 0333 772 0409.