Human rights—Family life— Serving prisoner

European Court of Human Rights (Grand Chamber)
Judges Rozakis (president), Wildhaber, Bratza, Zupancic, Lorenzen, Tulkens, Cabral Barreto, Birsan, Jungwiert, Hedigan, Baka, Botoucharova, Mularoni, Gyulumyan, Hajiyev, Myjer and Berro-Lefevre (and V Berger, section registrar)

10 January 2007, 17 October 2007, 4 December 2007

The secretary of state’s policy regarding applications by serving prisoners for artificial insemination facilities excludes any real weighing of the competing individual and public interests, and is therefore in breach of Art 8 of the European Convention on Human Rights (the Convention). 

The first applicant was serving a life sentence for murder. While in prison, he met the second applicant (who was then also a serving prisoner but was later released), and they subsequently married. The applicants wished to have a child together and applied for facilities for artificial insemination. 

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 applicants were refused permission to seek judicial review of that decision. They 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 Convention rights. They also sought damages for non-pecuniary loss under Art 41. The court ruled that the state had not exceeded its margin of appreciation and accordingly there had been no breach of Art 8. The applicants appealed to the Grand Chamber. 

The Grand Chamber of the European Court of Justice

The UK government first relied on the suggestion that losing the opportunity to beget children was an inevitable and necessary consequence of imprisonment. The court ruled that 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.

Second, the government appeared to maintain, although did not emphasise, that 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. The court reiterated that there was no place under the Convention system for automatic forfeiture of rights by prisoners based purely on what might offend public opinion. However, the court could accept that the maintaining of public confidence in the penal system had a role to play in the development of penal policy. The government also appeared to maintain that the restriction, of itself, contributed to the overall punitive objective of imprisonment.

However, the court 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.
Third, the government argued that 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 court was prepared to accept as legitimate that the authorities should concern themselves with the welfare of any child: conception of a child was the very object of the exercise. Moreover, the state had a positive obligations to ensure the effective protection of children.
However, that could not go so far as to prevent parents who so wished from attempting to conceive a child in circumstances like those of this 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.
Margin of appreciation

The court turned to the issue of balancing the conflicting interests and the margin of appreciation. It considered 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.

In particular, and having regard, to R (on the application of Mellor) v Secretary of State for the Home Department [2001] EWCA Civ 472, [2001] All ER (D) 34 (Apr), the policy placed an inordinately high “exceptionality” burden on the applicants when requesting artificial insemination facilities. They had to demonstrate, as a condition precedent to the application of the policy, that the deprivation of artificial insemination facilities might prevent conception altogether.

Second, 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 court considered that 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 by the secretary of state or by the domestic courts in their case, 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 competing individual and public interests or assess the proportionality of the restriction. Further, since the policy was not embodied in primary legislation, the various competing interests were never assessed by Parliament. Indeed, the policy was adopted prior to the incorporation of the Convention into domestic law.

The policy might not amount to a blanket ban since in principle any prisoner could apply. But the policy did not permit the required proportionality assessment in an individual case. Neither was it persuasive to argue, as the government did, that the starting point of exceptionality was reasonable since only a few persons would be affected, implying as it did the possibility of justifying the restriction of the applicants’ Convention rights by the minimal number of persons adversely affected. There had, accordingly, been a violation of Art 8 of the Convention. Making its assessment on an equitable basis, the court awarded the applicants €5,000 in total in respect of non-pecuniary loss pursuant to Art 41.