Religious circumcision and parental consent: L & B

Background

In L and B (Children: Specific Issues: temporary leave to remove from the jurisdiction; circumcision) [2016] EWHC 849 (Fam), AB was the father of two boys, L and B, aged 6 and 4¾. Their parents were never legally married, though they went through an Islamic marriage ceremony in January 2009. The relationship broke down in 2012: the father had not formed another relationship but the mother had a new partner with whom she had a two-year-old daughter.

The father had the children to stay on alternate weekends and sought to extend his contact time so as to move towards sharing their care more equally. He also sought permission to remove them temporarily from the jurisdiction of England and Wales, envisaging that they would travel regularly to Algeria in order to benefit from knowing both sides of their extended families and cultures. He offered a formal undertaking to the court to return the children to the jurisdiction at the end of each such period of contact and his sister offered to put in place a bond of £50,000 against him defaulting in his obligation to do so [30 & 31]. Finally, he asked for the court’s permission to allow the children to be circumcised under local or general anaesthetic,

“notwithstanding the absence of the mother’s consent and the children’s inability to consent to such a procedure. He acknowledges that there is no medical reason for carrying out this procedure on either child but wishes to observe the strict requirements of his Muslim faith” [32].

He therefore made applications in relation to the following:

  • orders determining the amount of time which the children should spend with each parent;
  • whether or not he should be permitted to remove them from the jurisdiction of England and Wales for the general purposes of foreign travel and, specifically, to visit Algeria, a non-Hague Convention country; and
  • whether it was in their best interests to be circumcised in accordance with his Muslim practice and beliefs.

The mother was not against increasing contact time progressively; however, there had been a number of major changes in the children’s lives and they needed a period of calm and stability in order to settle in their new school routines. She opposed the application for foreign travel, regardless of whether or not the intended destination was a Hague Convention state because she thought the risk of a wrongful retention by the father too great [33 & 34]. She saw circumcision as an unnecessary procedure with risks for the children both in the short and longer term:

“She does not say ‘never’ but she does say ‘not now’. She asks me to allow the children themselves to decide whether or not they wish to undergo the procedure once they are competent to decide for themselves” [35].

The circumcision issue and the balancing exercise

On the specific issue of circumcision, Roberts J noted the guidance of Ward J in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, subsequently upheld by the Court of Appeal in Re J (Specific Issue Orders: child’s religious upbringing and circumcision) [2000] 1 FLR 571 [46]. In particular, she noted “the point of principle … that s 2(7) of the Children Act 1989 does not enable a parent to arrange circumcision without the consent of the other” [49]

Circumcision was fundamentally important as an “obligation” for a Muslim father and, in accordance with Article 8 ECHR and the Human Rights Act 1998, the right to respect for the father’s and the children’s family life included his freedom to practise his religion: however, “If and insofar as the expression of that religion imposes on him an obligation to ensure that his children are circumcised, the law will only prevent that course if it does not coincide with their best interests” [130]. (She did not refer to the right to manifest under Article 9, which – presumably – she did not regard as a central issue in the present circumstances.) That said, however, there was a balancing exercise to be performed, with the following factors to be taken into account:

  • the parents were both practising Muslims when the boys were born and when their elder son was an infant the mother had accepted that he would be circumcised in accordance with his father’s and the common practice for Muslim boys [132];
  • the mother had abandoned Islam and the children were now receiving an essentially secular upbringing: their exposure to Islam was likely to be confined to those periods of time spent in their father’s care [133];
  • the father had ensured that, while in his care, the children were as fully involved in the Muslim faith as appropriate for their ages, attending classes at the mosque, observing prayers and learning Arabic: however, they were already aware that their mother did not espouse Islam [134].
  • likely they would continue to attend the mosque with their father as they developed more independence and, if not circumcised, there was a risk that they might feel alienated from Islam or from their circumcised peers and might “be the subject of either teasing or some gentle, if well-meaning, pressure” [135];
  • circumcision would confirm their identity as part of the Muslim community, eliminate the father’s anxieties and mean that they would not be subject to any further attempts to influence them one way or the other by either parent [137].
  • the procedure was irreversible and would settle the matter once and for all [137].

On the other hand:

  • the mother was opposed, “it is a strong thing indeed to impose a medically unnecessary surgical procedure on a parent who has primary care of young children who opposes it” and her distress would inevitably put emotional pressure on the children [138];
  • the boys had been the subject of litigation between their parents for most of their lives [139];
  • the mother would find it difficult to present the issue to them in a positive light and they were unlikely to understand why it was to be done to them [139];
  • being circumcised might make them feel “different and slightly isolated” from their non-Muslim friends and non-denominational school community [140];
  • the expert evidence suggested that there was no overriding imperative to circumcise them before the age of puberty [141].
  • “First and foremost, this is a once and for all, irreversible procedure. There is no guarantee that these boys will wish to continue to observe the Muslim faith with the devotion demonstrated by their father although that may very well be their choice. They are still very young and there is no way of anticipating at this stage how the different influences in their respective parental homes will shape and guide their development over the coming years. There are risks, albeit small, associated with the surgery … There must be clear benefits which outweigh these risks …” [142].

Conclusion

Roberts J concluded, in relation to circumcision, that the benefits did not outweigh the risks and that it would be preferable to make no order at this stage. She therefore deferred the decision

“to the point where each of the boys themselves will make their individual choices once they have the maturity and insight to appreciate the consequences and longer term effects of the decisions which they reach. Part of that consideration will be any increase in the risks of surgery by the time they have reached puberty. I do not regard the delay between now and that point in time significantly to increase those risks” [143].

That part of the application was dismissed. The current child arrangements order would remain in place, modified to provide for an additional overnight stay on alternate weeks. The prohibited steps order preventing the removal of either child from the jurisdiction of England and Wales would also remain in place [146].

See also: Religious circumcision, the rights of the child and the ECHR.

Cite this article as: Frank Cranmer, "Religious circumcision and parental consent: L & B" in Law & Religion UK, 21 April 2016, http://www.lawandreligionuk.com/2016/04/21/religious-circumcision-and-parental-consent-l-b/

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