Case of Dickson v. The United Kingdom

Application no. 44362/04
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The applicants met and married while both were incarcerated via a pen-pal program. The applicants wished to conceive a child. However, given Ms. Dickson’s age at the time of Mr. Dickson’s earliest release date, it was unlikely they would be able to have a child without the use of artificial insemination facilities. As such, the applicants applied for access to facilities for artificial insemination.

The Secretary of State refused their application, citing a public concern that the punitive and deterrent elements of Mr. Dickson’s sentence for murder would be circumvented if allowed to father a child by artificial insemination while in prison. The applicants sought leave to apply for judicial review of the Secretary of State’s decision, but were refused by the High Court and Court of Appeal.

The applicants lodged a complaint against the United Kingdom with the European Court of Human Rights. They alleged that the refusal of access to artificial insemination facilities violated Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Article 8 states that:

“1. Everyone has the right to respect for his private and family life …

  1. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The main issue in this case is whether the refusal to grant access to artificial insemination facilities constitutes an interference by public authorities with the right to respect for private and family life under Article 8.

The Court held that the refusal to grant access to artificial insemination facilities to the applicants was a violation of Article 8 of the Convention.

The Court held that, although the object of Article 8 is the protection of individuals against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interferences. Article 8 may also impose positive obligations on the State in order to ensure respect for private and family life.

Given that a person retains their Convention rights on imprisonment, the Court held that any restriction on Article 8 rights by public authorities must be justified by striking a fair balance between the competing public and private interests involved.

The Court held that a fair balance was not struck between the competing public and private interests, resulting in a violation of Article 8. In refusing the applicants’ request, the Secretary of State placed too much emphasis on what would offend the public opinion, and failed to give adequate weight to the significant interests of the applicants.

The Court found that the failure of the domestic authorities to take adequate account of the interest of the applicants was distressing and frustrating, and awarded 5000 EUR in compensation for non-pecuniary damages.

The Court considers that Article 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…” para 66, page 20

The Court observes that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves.” para 70, page 22

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.” para 74, page 23

The Court is prepared to accept as legitimate for the purposes of the second paragraph of Article 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. Moreover, the State has a positive obligation to ensure the effective protection of children…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…” para 76, page 23

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