Re P (Minors) (UK 1997 HIGH COURT OF JUSTICE - FAMILY DIVISION No. CP-1316-1997 8 International Abduction [UK 1997] =========================================================== IN THE HIGH COURT OF JUSTICE FAMILY DIVISION No. CP-1316-1997 Royal Courts of Justice Thursday, 7th August 1997 Before: MR. JUSTICE STUART-WHITE (In Chambers) IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF THE SUPREME COURT ACT 1981 RE P (Minors) Mr. H. Setright (instructed by M/s. Margaret Bennett Solicitors) appeared on behalf of the Applicant. Mrs. J. Roberts (instructed by Messrs Clifford Chance) appeared on behalf of the Respondent and the United States of America as intervenor. MR. JUSTICE STUART-WHITE: 001 The proceedings before me concern two children - R., who is twelve and a half, and C., who is nine and a half - but there are relating to those two children two applications. 002 The children are the children of married parents. The father is a United States national, the mother is a German national and she has commenced divorce proceedings in Germany on 24th July 1997. 003 The first of the applications before me is an application by the mother in Children Act proceedings by which she claims a residence order, specific issue and prohibited steps orders and leave to remove the children permanently from England and Wales to Germany. Her application came before Sumner J. ex parte on 25th July 1997 and an interim prohibited steps order was granted prohibiting the father from removing the children from their present address or from England and Wales. The order was expressed to last until yesterday, 6th August, which was the return date for her application. 004 The second application before me is on a summons by the United States of America and the father, which asserts, and invites the court to hold, that the court has no jurisdiction to entertain the mother's application because both the father and the children enjoy immunity from process by reason of the diplomatic immunity which derives from the Vienna Convention on Diplomatic Relations, the relevant Articles of which were incorporated into English law by the Diplomatic Privileges Act 1964 and which are set out in Schedule 1 of that Act. 005 It is plainly appropriate to deal first with the summons by the United States of America and the father. Indeed Mrs. Roberts, who appears for the United States and the father, has instructions only in relation to that summons and not in relation to the mother's applications. The facts relating to that summons can be succinctly stated. 006 The father is a senior diplomat in the service of the United States of America. He is employed as a member of the diplomatic staff at the United States Embassy in London. He, the mother and the two children all live at the same address in London, at premises provided by the Embassy. The mother fears that the father intends to remove the children to the United States. She asserts that R. has made known her wish that this should not take place. The mother, on the other hand, wishes to take the children permanently to Germany. 007 Article 31 of the Vienna Convention provides (subject to certain irrelevant exceptions) as follows: "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction" -- and then follow the exceptions. The words "diplomatic agent" are defined by Article 1 of the Convention as follows: "(e) a 'diplomatic agent' is the head of the mission. or a member of the diplomatic staff of the mission;" "(d) the 'members of the diplomatic staff' are the members of the staff of the mission having diplomatic rank;" By a certificate issued on behalf of the Secretary of State for Foreign & Commonwealth Affairs it is certified that the father is a member of the diplomatic staff. Section 4 of the Diplomatic Privileges Act provides: "If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact." Article 37 of the Convention provides in paragraph 1: "The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36." That of course means that they enjoy the privileges and immunities specified in Article 31. 008 A certificate provided under 5.4 of the Diplomatic Privileges Act certifies that the children with whom I am concerned are the dependents of the father. It is to be noted that the certificate does not follow the wording of Article 37. It is possible to conceive of dependents who are not members of a diplomat's family forming part of his household and for this reason the certificate does not, in my judgment, provide conclusive proof that the children fall within the provisions of Article 37. Nevertheless, it is not(and of course cannot be) disputed that the children are members of the father's family. Moreover they, together with the mother, live in the same house as that in which he lives. 009 Mr. Setright on behalf of the mother does not concede that the children form part of the father's household, pointing out that serious matrimonial disagreements exist and that divorce proceedings have been commenced by the wife. These facts however do not, in my judgment, constitute a basis for rejecting the natural inference to be drawn from the facts as I have recited them, namely the inference that these children (whatever may be the position of the mother) do form part of the father's household. 010 The arguments deployed on behalf of the mother, to which I shall refer in a little more detail shortly, prompt consideration of whether diplomatic immunity enjoyed by an individual can be waived by that individual. It is provided by Article 32, para. 1 as follows: "1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. "2. Waiver must always be express." The "sending State" of course in the instant case is the United States of America and that State has not waived immunity. There exists neither in the Diplomatic Privileges Act nor in the Vienna Convention any provision for waiver by the individuals enjoying such immunity. That immunity is effectively the property of the sending State and not of those individuals. 011 Article 32(3), which provides for the situation in which a person enjoying immunity himself initiates proceedings, precludes him from invoking immunity in respect of any counterclaim directly connected with the principal claim. This provision is not material to the situation which arises in this case and I hold the neither the father nor the children has any right to waive the immunity with which they are invested by Article 31 and Article 37 respectively. 012 This view of the law coincides precisely with that expressed by Laws J. in Propend Finance v. Sing, an unreported case in which he said at p.38 of the transcript, whilst dealing it is true with the position of a diplomat and not that of a member of his household (though it seems to me the same principle must apply): "Subject to the Act of 1978 a sovereign state is immune in its right as such. A diplomat by contrast is immune only in right of his sending state. His immunity is conditional, because by definition there exists a higher authority, his own state, which can cancel it: something he has no power to do himself. In the case of the state's own actions, there is of course no higher authority. So it is at the state's choice whether, for its own ends, to accept in any proceedings the legal power of a foreign court: hence the question as regards the state will be whether it has submitted to the jurisdiction. But the diplomat cannot by submitting himself to the jurisdiction be stripped of his immunity. It does not belong to him in any right of his own. So the test for loss of immunity is necessarily a different one. However far the diplomat has himself bowed to the foreign court's jurisdiction, he remains immune (subject of course to the exceptions in the Act of 1964, which in this case I have discounted), unless his sending state says otherwise: unless it waives his immunity. This is well illustrated by Bolasco v. Wolter (1957) 24 I.L.R. 525, a decision of the Tribunal of Luxembourg (an appellate court). An Italian diplomat had contested an action brought against him on the merits1 without raising any plea to the jurisdiction. The first instance court treated his defence on the merits as a waiver of immunity, and gave judgment for the plaintiff. On any view, no doubt, the defendant had for his part submitted to the jurisdiction. But the appeal court quashed the judgment: the diplomat had had no authority from his government to waive immunity." 013 Laws J. decision was subject to consideration by the Court of Appeal, of whose judgment I have also seen a transcript, and on this point the ruling of Laws J. was expressly approved by the Court of Appeal. Thus it is submitted on behalf of the United States of America and the father that this court has no jurisdiction to entertain the mother's application and must so hold, and accordingly must dismiss the mother's application. 014 It is submitted on the basis of the facts in this case and the clear statutory provisions that the court's hands are tied in this way and that it has no discretion which it could exercise on behalf of the mother were it minded to do so. 015 Mr. Setright, however, on behalf of the mother, in a characteristically skilful and attractively presented submission, has argued that the court does possess such a discretion and should have regard, in deciding how to construe, and whether and the extent to which to implement, the 1964 Act and the Convention, to modern thinking, both domestically and internationally, as to the position of children. He points out the apparent irony inherent in the proposition that a provision which is expressed as conferring a privilege to be enjoyed may operate against the interests and against the wishes of the person for whose ostensible benefit it exists. This is, he argues, a particularly poignant irony if it operates contrary to the welfare of a child. He further submits that a provision which may operate in a way adverse to the welfare of a child and ignores the child's wishes is contrary to the spirit of the Children Act. Whether or not that be so, it would have been possible for Parliament to include in the Children Act an amendment or repeal of the material parts of the Diplomatic Privileges Act 1964, but it chose not to do so. Accordingly, in my judgment, this part of Mr. Setright's submission does not impact on the question whether or in what way I should give effect to the 1964 Act. 015 Persuasive support for that view, if support is needed, can be found in a Canadian case Laverty v. Laverty decided by Cunningham J. in September 1994. In that case, which concerned a dispute relating to the matrimonial home of a United States Diplomat serving in the Embassy in Ottawa the question arose whether, because Article 31(4) of the Convention expressly provides that the immunity of a diplomatic agent from the jurisdiction of the receiving state does not exempt him from the jurisdiction of the sending state, diplomatic immunity was effectively removed in private law family matters by reason of the arrangements for reciprocal enforcement of family law orders. Cunningham J. said at p.7 of the transcript: "Let me briefly comment upon a point raised by counsel for Mrs. Laverty, that section 3l(4) of the Vienna Convention, read in conjunction with the reciprocal enforcement of Support Orders Act, R.S.O 1990 C.R.7 removes immunity in private law family matters. It is argued that international recognition of domestic support orders is now, through this and other such Statutes, being achieved such that any 'artificial barriers' to jurisdiction are removed. In my view, the Reciprocal Enforcement of Support Orders Act does not confer substantive powers but merely sets out a scheme by which proper domestic orders are to be enforced outside the jurisdiction. The entire Statute is premised on the fact that the host country (Canada in this case) has jurisdiction to make the order. Unfortunately, as I have determined, we do not". Much the same situation seems to me to apply in relation to the interface between the Children Act and the Diplomatic Privileges Act. 016 Mr. Setright's final and I think his principal submission is that since the ratification of the Vienna Convention and its incorporation into the Diplomatic Privileges Act, two other important intentional conventions have been agreed, signed and ratified by the British Government. They are the European Convention on Human Rights and the United Nations Convention on the Rights of the Child. Mr. Setright has drawn my attention to a number of articles in each of these conventions which emphasise the rights and the welfare of children, the importance of the integrity of family life and the undesirability of unjustified interference by the state incompatible with these principals and objectives. 017 However, there is, it seems to me, a fatal flaw in this part of Mr Setright's argument. It is clearly established that nothing in any treaty or convention can become part of English law unless it is expressly incorporated into English law by statute. Clear authority for this proposition is to be found in the House of Lords Decision, in British Airways v. Laker Airways [1985] 1 A.C. 58. Lord Diplock delivered the leading speech with which their Lordships all agreed and at p.85H to 86A he said this: "The interpretation of treaties to which the United Kingdom is a party but the terms of which have not either expressly or by reference been incorporated in English domestic law by legislation is not a matter that falls within the interpretive jurisdiction of an English court of Law. In this House the contrary has not been contended and no arguments have been addressed to your Lordships directed to the construction of the language of Bermuda 2". Bermuda 2 was the treaty which was the subject of those proceedings. 018 The British Parliament could have incorporated either or both of the conventions relied upon by Mr. Setright, or parts of them, into English statute law. But it has not done so. Accordingly, I hold that their provisions are of no assistance to the court in construing the provisions of the Diplomatic Privileges Act which are clear and unambiguous. Nor do the provisions of those conventions confer on the court any discretion as to the implementation of those provisions. Accordingly, the claim for diplomatic immunity succeeds. Service of the mother's application will be set aside and her application dismissed for want of jurisdiction. For the same reason, the order of Summer J. will be set aside but not, I think, discharged as asked for in the summons because it has expired. 019 In the summons issued by the United States of America and the father, there is also sought a declaration. In the terms in which it is sought in the summons, it seems to me that the declaration sought is too widely drawn. In any event, in the light of my decision on the question of immunity and the jurisdiction of the court to entertain the mother's application, I regard the granting of a declaration in those or other terms as unnecessary and otiose and I do not grant one. 020 Before I part from the case I do, however, make the following observations. The mother is effectively debarred from arguing her case relating to the children in the English courts. It is not for me to say what would be the appropriate forum in which he should or could do so. One possible forum is the courts of the United States of America. Before she can avail herself of the jurisdiction of the United States courts, she has a number of practical hurdles to overcome, not least the fact that (I am told) she is without funds to enable her to initiate proceedings there. In that connection I can, I think, do no better than to quote the passage in Cunningham J.'s judgment in Laverty v. Laverty which immediately the followed the passage that I have already cited: "What then is the effect of all this upon Mrs. Laverty? Clearly the United States Government has an obligation to ensure that Mrs. Laverty and the children are not left out in the cold. They were sent here by the United States Government which has declined the waiving of diplomatic immunity. That being the case, I should think that the U.S. Federal authorities would ensure Mrs. Laverty easy and cost effective access to the appropriate U.S. Court. She should not have to chase Mr. Laverty around the United States seeking to enforce rights which, were it not for diplomatic immunity, she might do easily". I quote that not as a proposition at law nor even as an exhortation, but merely as an observation. 021 Subject to any question of costs, that concludes my judgment. 022 MR. SETRIGHT: My Lord, there is one matter that is certainly agreed between my learned friend, Mrs. Roberts, and myself, and that is this. It is desirable to establish beyond any doubt at this stage, if your Lordship is prepared so to do, that the propositions in this judgment would also apply to any attempt by R. to make an application to this court on the assumption that that was met by the same arguments in respect of her inability to waive her immunity, as applied in the present summons. I think your Lordship has made that clear. Both of us desire --- 023 MR. JUSTICE STUART-WHITE: Well, if I did not make it clear, certainly I believed that I had, and I thought that it was implicit, if not explicit, in what I said. 024 MR. SETRIGHT: My Lord, I apologise for raising it. It is merely to make absolutely certain so that if the matter is taken further no doubt rests there. 025 MR. JUSTICE STUART-WHITE: Yes. 026 MR. SETRIGHT: Because those instructing me seek to take this matter further, I have given some thought and have mentioned the matter briefly to my learned friend as to what is the appropriate order that I should seek now. If, for example, this matter is to be raised as a complaint to the European Commission, all domestic remedies have to be exhausted, I could ask for leave to appeal to the Court of the Appeal and that would be the sensible and conservative course for me to make. Alternatively, if it was thought by the court and by the United States of America that in reality, if I sought to challenge your Lordship's judgment, I would really have to cope with an authority in the House of Lords, then it might be appropriate, with the leave of the court and, of course, essentially with the consent of the United States of America, for the court to be invited to grant a leapfrog certificate, because, being realistic, it is desirable to minimise domestic English appellate litigation in this case. So, my Lord, I mention that. If there is not a consent to leapfrog, then I simply ask for leave to appeal to the Court of Appeal for the purpose I have indicated. 027 MR. JUSTICE STUART-WHITE: Yes. 028 MRS. ROBERTS: My Lord, I have no instructions. Mr. Setright is quite right, he did raise this with me literally moments before your Lordship came into court. I can certainly take instructions but I think I would need to ask your Lordship to rise for a couple of moments so that I could canvas with my instructing solicitors the full implications of what is being proposed. It is not something that I would be happy dealing while I am on my feet. 029 MR. JUSTICE STUART-WHITE: I can readily understand that. Can I be clear, please, what are the provisions relating to leapfrog appeals? For example, if, despite the consent which might or might not be forthcoming from the United States, I were to take the view that this judgment was effectively unappealable in circumstances in which one would not normally grant leave to appeal, is there provision whereby an application could be made to the House of Lords directly? 030 MR. SETRIGHT: No, my Lord. I think, though I do not have the order before me, but from my recollection, if the court feels, despite a consent, let us say, that a leapfrog certificate should not be issued 031 MR. JUSTICE STUART-WHITE: Or indeed leave to appeal to the Court of Appeal. 032 MR. SETRIGHT: Or indeed leave to appeal to the Court of Appeal, there is no direct access, as it were, to the House of Lords, and if I have a remedy to pursue, I must seek to apply to the Court of Appeal in the usual way and, so, of course, if your Lordship were of the view presently that this was not a fit case for leave to appeal to the Court of Appeal or by way of certificate, then my learned friend, I suspect, need not be troubled and the court would simply refuse leave and indicate that, even if an application for a leapfrog certificate was agreed, the court would not feel it should be granted. 033 The reason in my case for seeking it is to minimise internal English appellate litigation because, with great respect, I think it is possible to some degree to predict the course which that litigation in this jurisdiction would take, albeit that this hearing is a novel one in this Division, and my learned friend and I are agreed, I think, on something else in respect of your Lordship's judgment, which we will come to in a moment. 034 MRS. ROBERTS: My Lord, I have instructions. The terms of your Lordship's judgment are crystal clear. It is our submission that this is an unanswerable case as the law presently stands. We would invite your Lordship to say that there should not be leave to appeal and, if the matter is to be taken further, an application must be made to a single Lord Justice for leave. 035 MR. JUSTICE STUART-WHITE: Mr. Setright, that is my view. 036 MR. SETRIGHT: So your Lordship would then, I think, in the absence of any consent to an application for leapfrog, refuse leave to appeal to the Court of Appeal. 037 MR. JUSTICE STUART-WHITE: Yes. 038 MR. SETRIGHT: May I have a moment to take instructions? 039 MR. JUSTICE STUART-WHITE: Yes. 040 MR. SETRIGHT: I think I am bound to ask, in conjunction with that application, for a stay, bearing this in mind that, if the proceedings are set aside or the order is set aside and the proceedings are discharged, then there is nothing from this moment on to restrain the father from dealing howsoever he wishes with the children. Nothing in law. 041 MR. JUSTICE STUART-WHITE: No. It would be a novel thing to do, would it not, to grant a stay pending an application for leave to appeal to the Court of Appeal which has just been refused by the court invited to grant the stay? 042 MR. SETRIGHT: It would be a novel thing, though I would invite the court to regard my application for a stay as having been made in conjunction with my application for leave to appeal but, my Lord, such applications, both classes of application, are often considered, sometimes granted and sometimes refused. It is plainly a matter in the court's discretion. As is usual, I can say that, if the stay is refused, then, if the court feels that there is a reasonable prospect of success of a domestic appeal, the absence of a stay might be a significant deprivation for the appealing party. If, on the other hand, a court feels that there was not a significant chance of success in a domestic appeal, then a court might refuse a stay. 043 MR. JUSTICE STUART-WHITE: That, if I may say so, is a realistic way of putting it and, subject to anything Mrs. Roberts may say, I am not at the moment minded to grant a stay, though whether or not some consensual agreement might be arrived at as to the immediate future of these children, I do not know. 044 MRS. ROBERTS: My Lord, may I say in relation to the application for a stay that I differ from my learned friend in his interpretation of the discretion with which this court is endowed. It is my submission that your Lordship has no discretion. This is not a case where the court properly assumed jurisdiction, has decided on the merits one way and exercises its discretion pending an appeal. This is a decision where you have decided that these proceedings were void ab initio and a nullity. In those circumstances, the court in my submission does not have that discretion. 045 MR. JUSTICE STUART-WHITE: I am inclined to think that is right and, even if it is not, my view is that this is a case where the prospects of success in any domestic appeal are so remote that it would not be appropriate or right to grant a stay, even if I have power to do so, which I very much doubt. 046 MR. SETRIGHT: My Lord, leave to appeal refused, stay refused. As to the judgment, I think my learned friend and I are agreed that there should be a transcript of your Lordship's judgment made available to the parties. Bearing in mind that there is at the moment no reported Family Division authority on the 1964 Act let alone the 1964 Act in the context of the Children Act and points from there towards the present, your Lordship's judgment would be of considerable value to practitioners in this Division and, subject to the usual provisions on anonymity, we invite the court to give leave for the judgment to be reported. 047 MR. JUSTICE STUART-WHITE: Yes? 048 MRS. ROBERTS: I would support that application. 049 MR. JUSTICE STUART-WHITE: Yes, very well. 050 MRS. ROBERTS (after taking further instructions): My Lord, what is raised is that the anonymity provided for the individuals in this case should also apply to the sending state in this case. I do not know whether your Lordship has a view on that. I am so sorry, would your Lordship give me one moment: 051 MR. JUSTICE STUART-WHITE: Yes. 052 MRS. ROBERTS (after a pause): My Lord, can I withdraw that last comment. 053 MR. JUSTICE STUART-WHITE: I think it is just as well that you have, if I may say so. 054 MRS. ROBERTS: Yes, I would not have been minded to ask. for it myself. We will not refer in any way to the position held by the respondent within the United States Embassy, but I think the shoulders of the U.S. Government are probably broad enough to weather the reporting 055 MR. JUSTICE STUART-WHITE: I think they are. The fact that he is a diplomat at the United States Embassy is all need be stated. 056 MRS. ROBERTS: My Lord, yes; and I think that probably is of concern to those behind me and was the cause of concern in relation to that restriction. 057 That simply leaves the question of the costs of my summons, and it includes an application for the costs. I make that application notwithstanding the status of Mrs. P. in these proceedings. There can, of course, be the usual qualification, but particularly if this matter is to go further, I do ask that I should have the costs of this application. 058 MR. SETRIGHT: My Lord, first, the mother does indeed have legal aid; but, second, I would refer the court once again to the the judgment of Mr. Justice Cunningham in the Canadian case where he dealt with the matter of costs and put it this way in the last paragraph of the judgment: "As to the matter of costs, I am of the view that because Mr. Laverty was obviously advised by his embassy not to respond, he should not be saddled with an order for costs nor should Mr. Laverty be entitled to any costs. This is a matter which he may wish to take up with his employer". As regards the position of the mother, the court took the view that she was entitled to have her costs met from public funds. Mrs. Laverty's position in that case was one with a good deal less urgency and concern attached to it, in my respectful submission, than the position of the mother ostensibly protecting the position of her children in this case. 059 I have to say that if a scintilla of assurance had been provided to the mother in this case about the practical arrangements that might be made for the protection of her interests and of the children, it is very likely that this resistance would not have taken place. But, even as I address the court, absolutely nothing has come from the United States; of most concern Miss Hutchinson (behind me) tells me that the Consul General of the German Federal Republic phoned the United States Embassy three times yesterday desiring to talk to somebody about the future of the mother and the children, and his calls have simply not been returned. 060 I have made it perfectly clear in my submissions to this court what my advice would have been to this mother if conventional assistance had been forthcoming. It would not have been required of the United States to concede one inch its position on diplomatic immunity merely to say what was going to happen if they succeeded - not bargaining, but an indication and an assurance. 061 As matters stand today, the mother tells me that her bank account has been frozen and that she is not just without income but without recourse to any bank account. The mother feels that she is in a parlous and difficult position. The United States has made the choice to bring these proceedings rather than to waive immunity. It has also made the choice not to negotiate and not to provide assurances. It has also made the choice that it does not want to have anything to do with these proceedings and this court. It is not, incidentally, a party to these proceedings, nor was an order made against the United States of America, as distinct from the father. 062 In my submission, my Lord, this is an appropriate case for there being no order as to costs and it would be extraordinary in a hearing not based on the merits and against this factual background and this failure to negotiate and provide assurances, despite an obvious wish by the mother to negotiate reflected in the attendance of her solicitors at the United States Embassy and the frequent and insistent calls by her own embassy; it would be appropriate for there to be no order as to costs in this case. 063 MR. JUSTICE STUART-WHITE: My view about costs, without expressing any view as to the strictures which Mr. Setright has made as to the conduct of the United States, and I do express no such views on the matter, nevertheless, it would not be appropriate that there should be any inter partes order for costs here. The mother is legally aided and, whilst it would in theory be possible to make an order not to be enforced without leave of the court, that seems to me to be unlikely to be productive in the circumstances of this case. The fact that I make no order as to costs in this case, of course, does not prohibit, if the case were to go further, any application being made to any other court. So there will be no order as to costs, save legal aid taxation of the mother's costs.