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Dickson v United Kingdom

Family Court Reports Cited authorities 11 Cited in 9 Precedent Map Related
Vincent
JudgeJUDGE ROZAKIS (PRESIDENT),JUDGES WILDHABER,BRATZA,ZUPANCIC,LORENZEN,TULKENS,CABRAL BARRETO,BIRSAN,JUNGWIERT,HEDIGAN,BAKA,BOTOUCHAROVA,MULARONI,GYULUMYAN,HAJIYEV,MYJER AND BERRO-LEFEVRE,MR V BERGER (SECTION REGISTRAR)
Judgment Date04 January 2007

Human rights – Private and family life – Serving prisoners – Access to artificial insemination – Secretary of State refusing to grant access to applicant prisoners – Whether policy in breach of prisoners’ rights to family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.

The first applicant was a prisoner serving a life sentence for murder. His earliest possible release date was 2009. Whilst in prison, he met the second applicant (who was at that time a serving prisoner but was later released), and they subsequently married. The first applicant had no children; the second applicant had three children from other relationships. The applicants wished to have a child together and applied for facilities for artificial insemination. They relied on, inter alia, the strength of their relationship and the fact that it was unlikely that they would be able to have a child together without the use of artificial insemination, because of the second applicant’s age. The Secretary of State, having regard to his general policy in relation to such matters, refused their application. By that policy such requests were only to be granted in exceptional circumstances. The policy was said to reflect the maintenance of public confidence in the penal system and the welfare of any child conceived as a result of artificial insemination. The Secretary of State gave reasons as to why the applicants’ circumstances were not exceptional. The applicants were refused permission to seek judicial review of that decision, and were refused permission to appeal against that refusal. The applicants complained to the European Court of Human Rights that the refusal of access to artificial insemination facilities breached their right to respect for private and family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, and their right to found a family under art 12 of the Convention. They also sought damages for non-pecuniary loss under art 41. The court ruled (see [2006] 2 FCR 1) that the impugned restriction did not limit a general entitlement already in place in a prison environment, but rather concerned the state’s refusal to take steps exceptionally to allow something (the possibility of the begetting of children by prisoners) not already an existing general right or entitlement. The applicants’ complaint was effectively that, in refusing them access to artificial insemination

facilities, the state had failed to fulfil a positive obligation to secure respect for private or family life. The requirements of the notion of respect for family life were not clear cut, especially as far as the positive obligations inherent in that concept were concerned. The area was one in which there was little common ground between member states. It was, therefore, an area in which contracting states enjoyed a wide margin of appreciation. The aims of the policy in question were legitimate: the maintenance of public confidence in the penal system and the welfare of any child conceived and, therefore, the general interests of society as a whole. The court placed particular importance on the fact that the policy did not operate as a blanket ban but allowed consideration of the circumstances of each application for artificial insemination facilities on the basis of domestic criteria considered to be neither arbitrary nor unreasonable and which related to the underlying legitimate aims of the policy. The state had not exceeded its margin of appreciation and accordingly there had been no breach of arts 8 or 12. The applicants appealed to the Grand Chamber. The state cited three justifications for the policy: (i) losing the opportunity to beget children was an inevitable and necessary consequence of imprisonment; (ii) public confidence in the prison system would be undermined if the punitive and deterrent elements of a sentence would be circumvented by allowing prisoners guilty of certain serious offences to conceive children; and (iii) the absence of a parent for a long period would have a negative impact on any child conceived and, consequently, on society as a whole. The applicants suggested that the margin of appreciation had no role to play since the policy had never been subjected to parliamentary scrutiny and allowed for no real proportionality examination. The state argued that the margin ought to be wide, since the policy was not a blanket one and there was no European consensus on the subject.

Held – (Judges Wildhaber, Zupancic, Jungwiert, Gyulumyan and Myjer dissenting) Article 8 was applicable to the applicants’ complaints, in that the refusal of artificial insemination facilities concerned their private and family lives which notions incorporated the right to respect for their decision to become genetic parents. A person retained his or her Convention rights on imprisonment, so that any restriction on those rights had to be justified in each individual case. That justification could flow, inter alia, from the necessary and inevitable consequences of imprisonment or from an adequate link between the restriction and the circumstances of the prisoner in question. It could not, however, be based solely on what would offend public opinion. While the inability to beget a child might be a consequence of imprisonment, it was not an inevitable one, it not being suggested that the grant of artificial insemination facilities would involve any security issues or impose any significant administrative or financial demands on the state. There was no place under the Convention for automatic forfeiture of rights by prisoners based purely on what might offend public opinion. The court was prepared to accept as legitimate that the authorities should concern

themselves as a matter of principle with the welfare of any child, and the state had a positive obligation to ensure the effective protection of children. That, however, could not go so far as to prevent parents who so wished from attempting to conceive a child in circumstances such as the instant case, especially as the second applicant was at liberty and could have taken care of any child conceived until such time as her husband was released. Moreover, the policy as structured effectively excluded any real weighing of the competing individual and public interests, and prevented the required assessment of the proportionality of a restriction, in any individual case. In particular, the policy placed an inordinately high ‘expectation’ burden on the applicants. Even if the applicants’ art 8 complaint was before the Secretary of State and the Court of Appeal, the policy set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test as required by the Convention. In addition, there was no evidence that when fixing the policy the Secretary of State had sought to weigh the relevant individual and public interests or assess the proportionality of the restriction. Since the policy was not embodied in primary legislation, the various competing interests were never weighed, nor were issues of proportionality ever addressed by Parliament. The absence of such an assessment had to be seen as falling outside any acceptable margin of appreciation so that a fair balance was not struck between the competing public and private interests involved. There had, accordingly, been a violation of art 8. No separate issue arose under art 12; R (on the application of Mellor) v Secretary of State for the Home Dept[2001] 2 FCR 153 considered.

Cases referred to in judgment

Aliev v Ukraine [2003] ECHR 41220/98, ECt HR.

Boso v Italy [2002] ECHR 50490/99, ECt HR.

Campbell and Fell v UK [1984] ECHR 7819/77, ECt HR.

Draper v UK (1980) 24 DR 72, E Com HR.

ELH and PBH v UK (1997) 91A DR 61, E Com HR.

Evans v UK[2007] 2 FCR 5, ECt HR.

Golder v UK (1975) 1 EHRR 524, [1975] ECHR 4451/70, ECt HR.

Hamer v UK (1979) 24 DR 5, E Com HR.

Hirst v UK (no 2) [2004] ECHR 74025/01, ECt HR.

Kalashnikov v Russia [2001] ECHR 47095/99, ECt HR.

Kyprianou v Cyprus [2005] ECHR 73797/01, ECt HR.

Odievre v France[2003] 1 FCR 621, ECt HR.

Osman v UK (1998) 5 BHRC 293, ECt HR.

Ploski v Poland [2002] ECHR 26761/95, ECt HR.

R (on the application of Mellor) v Secretary of State for the Home Dept[2001] EWCA Civ 472, [2001] 2 FCR 153, [2002] QB 13, [2001] 3 WLR 533, [2001] 2 FLR 1158.

R v Human Fertilisation and Embryology Authority, ex p Blood [1997] 2 FCR

501, [1997] 2 All ER 687, [1999] Fam 151, [1997] 2 WLR 806, [1997] 2 FLR 742, CA.

Silver v UK (1983) 5 EHRR 347, [1983] ECHR 5947/72, ECt HR.

Smith v UK (2000) 29 EHRR 493, [1999] ECHR 33985/96, ECt HR.

T v UK (1983) 49 DR 5, ECt HR.

Van der Ven v Netherlands [2003] ECHR 50901/99, ECt HR.

X v Switzerland (1978) 13 DR 241, E Com HR.

X v UK (1975) 2 DR 105, E Com HR.

X v UK (1982) 30 DR 113, E Com HR.

Yankov v Bulgaria [2003] ECHR 39084/97, ECt HR.

Z v UK[2001] 2 FCR 246, ECt HR.

Application

The applicants, Kirk and Lorraine Dickson, lodged an application against the United Kingdom of Great Britain and Northern Ireland with the European Court of Human Rights, whereby they complained about the refusal of access to artificial insemination facilities which they argued breached their rights under arts 8 and/or 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The facts are set out in the judgment.

PROCEDURE

1. The case originated in an application (no 44362/04) against the United Kingdom of Great Britain and Northern Ireland lodged with the court under art 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘the Convention’) by two British nationals, Kirk and Lorraine Dickson (‘the applicants’), on 23 November 2004.

2. The applicants, who were granted legal aid, were represented by Mr E Abrahamson, a solicitor practising in Liverpool. The United...

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