10 November, 2023
A prisoner with the earliest release date in August 2027 applied to the Prison Service concerning participation in fertility treatment.
His partner unfortunately suffers from fertility problems, which include a low number of eggs, polycystic ovaries and a blocked and leaking right fallopian tube. Therefore, the couple wished to explore IVF treatment so that they could have a child together.
It was argued that the following factors were in favour of the application being granted:
(a) the low likelihood of conception if the couple waited until the Prisoner's time of release;
(b) that there would be satisfactory arrangements for the care of the child once born, as the Prisoner's partner is financially and emotionally able to look after the child with the support of her family. The application submitted that the couple had complied with the criteria in the Prison Service Policy;
(c) the costs would be met from the Claimant's partner's income and savings.
The application was refused, with part of the reasoning being:
"In addition, regard must be given when assessing prisoner applications to access fertility treatment to the need to maintain public confidence in the justice system, and it is noted that [the Claimant] is serving a significant sentence for serious crimes which include a firearm.
[The Claimant] has a well-established pattern of offending behaviour linked to drug use/dealing and the possession of firearms/ammunition.
Whilst [the Claimant] maintains that the index offence represents poor decision-making and a lack of consequential thinking rather than a return to his past lifestyle, it is evident that he moves in a sub-culture whereby the possession of weapons is not necessarily unusual and that he can access and use an illegal firearm in public.
At the time of the index offence, [the Claimant] was living with his mother to distance himself from negative peers. It is understood that upon release from prison, [the Claimant] hopes to live with [M] and his youngest daughter however this will be subject to approval by Probation and it is likely because of his current risk level that he will be placed in Probation Approved Premises for a further period of risk assessment prior to consideration being given to independent living.
[The Claimant] has been assessed as High risk to the public and Medium risk to children. Due to the fact that he presents a risk to children in the community, it is likely that prior to release, [the Claimant] will be referred to Children's Services. The risk is due to the lifestyle [the Claimant] has previously lived, which involved the use of firearms. A referral would consider the possible risk to children as they could witness him committing a violent act, be caught in the crossfire if firearms are used, or be indoctrinated into a criminal lifestyle.
There is also the potential of risk to a child's wellbeing and development as a result of [the Claimant's] behaviour. In applying the policy, it is concluded that on balance, it is not appropriate to grant access to fertility treatment."
A challenge to the refusal failed, with the court commenting:
"There is also the very important point that the Claimant must be taken to have forfeited the absolute Right to have a child with M at a time and by a method of his choosing. That is a necessary consequence of imprisonment, and the public would be rightly concerned if people such as the Claimant could too readily be allowed to enjoy the rights which law-abiding citizens enjoy."
This last comment is a stark reminder that imprisonment does not merely mean the loss of immediate liberty but also the opportunity to safeguard and advance other aspects of family life.
Cases such as this one are, of course, fact-specific, but the reality is that prisoners seeking access to such treatments face high hurdles.
If you need assistance with this or any other human rights or criminal law matters, please get in touch with Craig MacKenzie, Partner and Head of the High-Profile & Private Crime Division.
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