Mr. and Mrs. Dickson (“the Applicants”) were a married couple. At the time of the application, Mr. Dickson was serving a prison sentence for murder and was not scheduled for release for several years. Given the first applicant’s foreseeable release date and the second applicant’s age, it was unlikely that they would be able to have a child together without the use of artificial insemination and therefore, the Applicants requested for facilities for artificial insemination.
The Secretary of State refused their application, explaining that under general policy, requests for artificial insemination by prisoners could only be granted in “exceptional circumstances.” The grounds given for refusal were that: the applicants’ relationship had never been tested in the normal environment of daily life (as they met while incarcerated), insufficient provision had been made for the welfare of any child that might be conceived, that mother and child would have only a limited support network, and that the child’s father would not be present for an important part of her or his childhood. It was also considered that there would be legitimate public concern that the punitive and deterrent elements of the first applicant’s sentence were being circumvented if he were allowed to father a child by artificial insemination while in prison.
The Applicants were refused leave by the UK High Court and Court of Appeal to seek judicial review of the Secretary of State’s decision and on 23 November 2004, they filed a complaint before the European Court of Human Right, alleging that by refusing them access to artificial insemination facilities the U.K. had breached their rights under Articles 8 (right to respect for private life) and 12 (right to marry) of the European Convention on Human Rights (“the Convention”). On 18 April 2006 a Chamber of the European Court of Human Rights held that there had been no violation of Articles 8 or 12 of the Convention. On 13 September 2006 the Court granted the applicants’ request to refer the case to the Grand Chamber.
The Grand Chamber found that the state’s refusal to provide facilities for artificial insemination to the Applicants interfered with their right to family and private life under Article 8 of the Convention. As a result, it determined that the core issue for its consideration was whether this interference was necessary in a democratic society for a legitimate aim under Article 8(2) of the Convention and as such whether the state had struck a fair balance between the competing public and private interests involved.
The Grand Chamber considered it evident that the matter was of vital importance to the Applicants, as it was excepted that it was their only way of having a child together. It also found that while the inability to conceive might be a consequence of imprisonment, it was not an inevitable one. It also noted that granting the Applicant’s access to artificial insemination facilities would not have involved any security issues or imposed any significant administrative or financial demands on the state. It considered that there was no place under the Convention system, where tolerance and broadmindedness were the acknowledged hallmarks of a democratic society, for automatic forfeiture of rights by prisoners based purely on what might offend public opinion. It underlined the evolution in European penal policy towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence.
The Grand Chamber acknowledged that the authorities should concern themselves, as a matter of principle, with the welfare of any future child and that the state should ensure the effective protection of children. However, in the Court’s view that could not go so far as to prevent the applicants from attempting to conceive since Ms. Dickson was at liberty and could have taken care of any future child until her husband was released.
As a result, the Grand Chamber considered that the policy as applied to the Applicants excluded any real weighing of the competing individual and public interests, and placed an “inordinately high ‘exceptionality’ burden” on the Applicants, resulting in violations of their rights to respect for private and family life (Article 8 ECHR). The Grand Chamber held that no separate issue arose under Article 12.