Some quick comments. Following Mostyn J's earlier decision that proceedings seeking a care order be stayed because of #DiplomaticImmunity, the judge has now allowed proceedings seeking a declaration of incompatibility under the #HumanRightsAct to proceed. 1/n https://twitter.com/lawtweets/status/1265931081666056192

Factual developments first. The sending States having, on request, refused to waive #DiplomaticImmunity and abuse apparently continuing, the FCO declared the father and his dependent family members personae non gratae. 2/n

Four of the children (aged 18, 18, 17 and 14) have left the family home and claimed asylum. The youngest two (age 5 and 9) have returned with the parents to their homeland. 3/n

The application for a declaration by the Local Authority thus being academic, Mostyn J held a hearing to determine whether it should still go ahead. He concluded it should. 4/n

This time, the FCO did intervene, and wheeled out the heavy guns: two silks (Sir James Eadie QC and Professor Vaughan Lowe QC) and three juniors. 5/n

Following ex p Salem [1999] 1 AC 45, Mostyn J held that he had a discretion to hear an academic application in the public law field but that was a discretion to be exercised with caution. 6/n

The FCO argued that that the importance of the Vienna Convention on Diplomatic Relations for the conduct of international relations, and the dangers that holding it incompatible with the #ECHR would have for British diplomacy, meant that the claim should not be heard. 7/n

Mostyn J disagreed. A declaration simply put the ball into the Government's and Parliament's court. Strong arguments existed that there was no incompatibility. Given the importance of the issue and the number of children potentially affected, the claim should go ahead. 8/n

Can a declaration be avoided? Mostyn J referred to paras 44-45 of his 1st judgment. Could the police intervene to end an assault by a diplomat on his child? This issue arose recently in The Netherlands, where the sending State strongly resisted any exercise of jurisdiction. 9/n

It might be argued that international responsibility could be avoided on the basis of distress or (possibly) necessity (Arts 24 and 25 ILC Articles on State Responsibility). But Art 24 refers only to saving live, not to preventing ill-treatment. 10/n

Ultimately, Mostyn J seems to basis his argument on that that even if he grants a declaration, the problem can be resolved by Parliament "providing for an amendment to the Human Rights Act 1998 which excepts its reach to the children of serving diplomats". 11/n

This seems optimistic. The issue does seem one where different norms of international law conflict and the reciprocity inherent in one set of rules argues against the application of the other. 12/n

In which case, are we left with a situation like that in Omelas? /end http://sites.asiasociety.org/asia21summit/wp-content/uploads/2011/02/3.-Le-Guin-Ursula-The-Ones-Who-Walk-Away-From-Omelas.pdf