Emily Jackson, Law Department, Queen Mary, University of London. Two recent cases have addressed the question of whether British prisoners and their partners should be afforded access to the means necessary for them to conceive a child. In both cases the prisoners concerned were denied access to artificial insemination (AI) and the approaches of the different courts were the same. In R (Mellor) v Secretary of State for the Home Department  EWCA Civ 472,  2 FLR 1158 it was held that denying access to AI to prisoners could interfere with their right to found a family under Art 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention) but only if it eliminated a prisoner's chance to start a family all together. The Government's policy was to allow access to AI to prisoners only in exceptional circumstances. In Dickson v United Kingdom  2 FLR 449, where denial of access to AI would have prevented Mr and Mrs Dickson from ever starting a family together, the majority in the European Court of Human Rights found that the Secretary of State's decision to deny access to AI to them was a justified interference with their Art 8 rights under the Convention because the government's policy served a legitimate public interest, in this case, preserving confidence in the penal system.
Considering the issues raised by the Dickson case, this article examines what is meant by the right to found a family as it relates to prisoners, and whether it can be interpreted as a right to be free from state constraints, as opposed to a right to positive state assistance. If prisoners retain all civil rights, it is argued, then retention of rights should be the default position and the burden of proof should be on those seeking to deny a prisoner access to his right to found a family, rather than on the prisoner to prove exceptional circumstances in order to exercise a core Convention right, as is now the case following Mellor and Dickson. For the full article see Child and Family Law Quarterly, Vol 19, No 2, 2007.