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Re O (A Child: The Vienna Convention on Consular Relations 1963 [2021] EWHC 908

The court was concerned with O who was born in 2007 and thus 13 years old at the time of judgment. She is a citizen of the Democratic Republic of the Congo ('DRC') and arrived in the UK around 2nd August 2020. It appears that O’s father died in prison in 2018 and in July 2020 O, her brothers and mother were arrested. O evaded detention and was cared for by a friend of her mother’s K, who eventually brought her to the UK and left her at a bus stop.

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On the 4th August she was taken into police protection and then placed in local authority foster care. On 14th September the local authority left a message at the Embassy of the DRC in London, notifying them that one of their citizens had been placed in foster care, but received no reply. On 12th November 2020 the court made an interim care order.

O missed her family but did not wish to return to the DRC as she believed she would risk being killed if she returned and was strongly opposed to the authorities in DRC being given any information about her. The court found no reason to doubt her account of 'horrific' experiences. O was doing well in and the care plan was for her to remain in foster care and receive psychological help.

The discrete issue for the court was to decide if the local authority is under a duty to notify the Congolese authorities that O is the subject of public law proceedings. The local authority and the children's guardian, both sought a declaration that such non-notification was lawful and proportionate

The court reserved full judgment until the Issues Resolution Hearing (IRH) but decided on an interim basis that Article 37 of the Vienna Convention on Consular Relations 1963 ('The Vienna Convention') was engaged and that respect for international Conventions would normally impose a duty upon the local authority to inform the relevant authorities in the DRC, but in the circumstances of this case it was 'plainly not in her best interests' to do so. Following the IRH the Judge confirmed this interim decision and provided fuller reasons.

The court examined closely the relevant provisions of the Vienna Convention. Article 36 provides that States should keep other States informed with regard to the nationals of one State who end up detained in the other, and that consular officers shall be free to communicate with and visit those nationals of their State. Article 37 imposes a duty on the State who is dealing with a foreign national to inform that person's consulate without delay if a guardian or trustee has been appointed for a minor or person otherwise lacking capacity. However, this is 'without prejudice' to the operation of laws and regulations of the State concerning such appointments.

The court therefore confirmed that Article 36 was not engaged but Article 37(b) was. The court referred to the judgment of the former President Sir James Munby in the case of Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam). He set out at paras 47-48 the requirements of 'good practice' in this area which was to allow free communication and access between a foreign national and their consular authority. The court should normally accede to any request by the foreign state for an accredited official to attend hearings and obtain relevant documents. The court should make sure that the relevant consular authority has been told about the foreign national child who is represented by a guardian or litigation friend. 

If the court wishes to adopt a different approach then it is essential to hear submissions and set out clearly the reasons for its decision.
The court would need to balance the need for local authorities to respect its obligations under the Vienna Convention (see In Re JL and AO [2016] EWHC 440) while at the same time considering circumstances where the foreign State ought not to be informed.

An example of this was given at page six of advice given in July 2014 by the Department for Education,  "Working with foreign authorities: child protection cases and care orders":

"Social workers should inform the relevant Embassy when a child with links to a foreign country has become the subject of a child protection plan, has required immediate protection or has become the subject of care proceedings, unless doing so is likely to place the child or family in danger and provided any necessary consent to disclose information has been obtained. Decisions should be linked to a robust and thorough risk assessment."

The Vienna Convention, has not been incorporated it into domestic law by an Act of Parliament and so the court therefore needed to consider what binding force it had. As a general and important principle of public policy, the UK should respect the comity of nations and obey an instrument binding under public international law. Therefore the domestic courts are bound to consider Article 37 of the Vienna Convention as a 'necessary but not sufficient consideration in applying domestic legislative duties'.

In this case, the court found that Article 37(b) did not impose an absolute and binding duty in all circumstances to notify a foreign authority where a court appoints a guardian in respect of one of its nationals. O's case was an example of one of those rare cases where 'it would wholly inimical to the welfare best interests of the child to give the requisite notice to the foreign authority.'

Case summary by Sarah Phillimore, Barrister, St John's Chambers

For full case, please see BAILII