#1776 - Dickson V Uk - Family Law

Dickson v UK [2008] 1 FLR 1315

ECtHR

Facts

D was a convicted murderer serving a sentence of imprisonment. In 1999 he met B through a pen-pal network. They were married in 2001 and wished to have a child. D and B applied to use facilities for artificial insemination. They pointed out that it was unlikely that they would be able to conceive naturally, given the likely age of the first applicant at his notional release date. The Secretary of State refused this request in 2003.

Held ECtHR

• While the Chamber confirmed that persons continued to enjoy all Convention rights following conviction except the right to liberty, it also noted that any prison sentence has some effect on the normal incidents of liberty and inevitably entailed limitations and controls on the exercise of Convention rights.

  • The fact of such control was not, in principle, incompatible with the Convention but the key issue was whether the nature and extent of that control was compatible

• The Court considers that Art.8 is applicable to the applicants' complaints in that the refusal of artificial insemination facilities concerned their private and family lives which notions incorporate the right to respect for their decision to become genetic parents

  • There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction

    • Thus, restrictions must be justified. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment

• As to the applicants' interests, it was accepted domestically that artificial insemination remained the only realistic hope of the applicants

  • Whilst the inability to beget a child might be a consequence of imprisonment, it is 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

  • Similarly, while the maintaining of public confidence in the penal system has a role to play in the development of penal policy

    • and that punishment remains one of the aims of imprisonment,

      • penal policy has evolved towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence

  • The Court is prepared to accept as legitimate, for the purposes of the second paragraph of Art.8 , that the authorities, when developing and applying the policy, should concern themselves, as a matter of principle, with the welfare of any child: conception of a child was the very object of the exercise.

    • However, that cannot go so far as to prevent parents who so wish from attempting to conceive a child in circumstances like those of the present 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.

• Since the national authorities make the initial assessment as to where the fair balance lies in a case before a final evaluation by this Court, a certain margin of appreciation is, in principle, accorded

  • While the Court has expressed its approval for the evolution in several European countries towards conjugal visits for prisoners, it has not yet interpreted the Convention as requiring contracting states to make provision for such visits

    • However, and even assuming that the judgment of the Court of Appeal in the Mellor case amounted to judicial consideration of the policy under Art.8 , ²⁵ the Court considers that 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

• The policy in this case was too high

  • They had to demonstrate, in the first place, as a condition precedent to the application of the policy, that the deprivation of artificial insemination facilities might prevent conception altogether (the “starting-point”).

  • Secondly, and of even greater significance, they had to go on to demonstrate that the circumstances of their case were “exceptional” within the meaning of the remaining criteria of the policy (“the finishing point”).

    • 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 by the Secretary of State or by the domestic courts in their case, as required by the Convention

  • In addition, there is no evidence that, when fixing the policy the Secretary of State sought to weigh the relevant competing individual and public interests or assess the proportionality of the restriction.

    • Further, since the policy...