UK – 1997

No. CP-1316-1997
8 International Abduction [UK 1997]

No. CP-1316-1997
Royal Courts of Justice
Thursday, 7th August 1997


(In Chambers)




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.


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

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

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

“(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

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

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

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

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.


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.


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

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

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.


038 MR. SETRIGHT: May I have a moment to take


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

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

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.


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:


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

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

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

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.