Neutral
Citation Number:
[2016] EWHC 849 (Fam)
Case
No: FD12P01761
IN
THE HIGH COURT OF JUSTICE
FAMILY
DIVISION
IN THE
FAMILY COURT AT EXETER
Date:
05/04/2016
Before
:
MRS
JUSTICE ROBERTS
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Re
L and B (CHILDREN)
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(SPECIFIC
ISSUES:TEMPORARY LEAVE TO REMOVE FROM THE JURISDICTION; CIRCUMCISION)
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Rupert
Chapman (instructed by Fisher Meredith)
for the applicant
father
Katherine
Dunseath (with assistance from Mr James Chegwidden)
(instructed on a pro bono basis)
for the respondent
mother
Ellen
Saunders of Porter Dodson instructed on
behalf of MS,
the children’s Guardian
Hearing
dates: 2nd, 3rd, 4th and 5th November 2015
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Judgment
This judgment was delivered in private. The judge has given leave
for this version of the judgment to be published on condition that
(irrespective of what is contained in the judgment) in any published
version of the judgment the anonymity of the children and members of
their family must be strictly preserved. All persons, including
representatives of the media, must ensure that this condition is
strictly complied with. Failure to do so will be a contempt of
court.
Mrs
Justice
Roberts :
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These are applications by AB, the father of two
young children, L and B, who are now respectively 6 and 4¾ years old.
They relate to the ongoing arrangements for the children’s care and for
specific issue orders. The respondent is the children’s mother. The
children’s parents were never legally married to one another although
they went through a ceremony of Islamic marriage in January 2009. They
were in a relationship for approximately five years during the course
of which their two sons were born. The relationship broke down in
circumstances to which I shall come in July 2012. They have not lived
together since. The father has not formed another relationship. The
mother has a new partner who is the father of their child, a daughter,
C, who is now 2 years old.
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I will refer to the applicant and the
respondent in this judgment as “the father” and “the mother”....
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This is my judgment in relation to the
father’s applications in relation to the following issues:-
...
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whether it is in the children’s best
interests to allow them to be circumcised in accordance with the
father’s Muslim practice and religious beliefs in circumstances where
the mother opposes that course until such time as the children have
reached an age where they are competent to give consent to such a
procedure.
...Background
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The father is now 36 years old. He was born
in Algeria and now has dual Algerian and British nationality. He is a
devout Muslim and, despite what he acknowledges to be lapses in his
religious observance in the past, is committed to the principle of
ensuring that, as part of their dual heritage, his two sons grow up as
Muslims observing all the tenets and practices of that religion. ...
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The mother is now 34 years old. She had
grown up in Devon before qualifying professionally at which point she
moved to London. These parents met in 2006. A relationship between them
was to develop and they began to cohabit at an address in North London.
L was born in 2009 and B in 2011. Prior to L’s birth, the mother had
indicated a willingness to convert to the Muslim faith. She received
instruction at a central London mosque. The father’s case is that she
willingly embraced his faith without any pressure or coercion on his
part. She chose a new Muslim name ...
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At the beginning of 2009, before their
children were born, the parties went through an Islamic ceremony of
marriage. ...
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In 2011, following L’s birth they travelled
with the two children to Algeria to visit the father’s parents. ...
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During this initial trip, there was some
discussion about the possibility of circumcising the boys. The father’s
case is that the mother was wholly committed to the principle of their
children being brought up in the Muslim faith and had agreed that, as
Muslim boys, they should be circumcised as babies. When they took this
trip to Algeria, L was not yet two years old and his younger brother
was about three months old. In the father’s Muslim culture it is
customary following the circumcision ceremony for the family to
celebrate with friends. Because there was insufficient time to make
these arrangements on that trip, nothing happened in relation to the
children’s circumcision and the family returned to London. ...
...
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At the July 2014 review hearing, the father
raised for the first time the issue of circumcision. He also sought the
return of his passport. Formal applications were issued in respect of
these matters on 18 and 28 July 2014. Directions were given on 27
October 2014 to include the instruction of experts. On 12 December 2014
the children were joined as parties to the proceedings with MS
appointed as their Guardian. Orders were made regulating the
development of contact between the children and the father on an
ongoing basis. At the beginning of February 2015, the applications were
transferred to the High Court to be heard by a judge of the Family
Division. There had by this stage been a delay in the instruction of
the proposed experts because of funding issues. The matter had been
listed for final hearing in July 2015 but all parties agreed that the
two days which had been allocated for the case were insufficient.
Instead, Baker J dealt with final directions for this hearing. His
order of 6 July 2015 provided not only for the listing of this hearing
before me but also for the reception of the evidence from the four
expert witnesses from whom I have heard.
The
respective positions of the parties as the case was opened
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In summary, these were the positions of the
parties as the case began.
The father’s position
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In terms
of the second limb of the relief
which he seeks from the court, he
asks for the court’s permission to allow the children to undergo the
surgical procedure of circumcision 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.
...
The
mother’s position
...
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In
relation to circumcision, for a number of reasons to which I shall come
shortly, she sees this as an unnecessary medical procedure which
carries with it certain 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.
The Guardian
...
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In respect of circumcision, the Guardian
invited me to consider a number of different factors which have to be
weighed in the balance before reaching conclusions about the children’s
best interests. I shall come to these shortly once I have considered
the law as I must apply it to the facts of this case as I find them to
be.
...
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Before moving on to analyse the evidence
which I heard from the parties and the experts, I turn now to consider
the law. There is broad consensus amongst the advocates in the case as
to the legal landscape into which I am treading. Whilst the application
regarding the arrangements for the division of the children’s time is
familiar territory for any family judge, the
aspects of the law raised by the specific issue applications require
some consideration of the developing jurisprudence in relation to travel abroad to non-Convention countries and
the circumstances in which circumcision,
absent the consent of both parents, is likely to be approved by the
court.
THE
LAW
...
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Circumcision
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In relation to the specific issue of
circumcision and its consequences for these children, my starting point
is their welfare which is paramount. All the factors set out in s 1(3)
of the 1989 Act must be considered again in the context of this
discrete application. So, too, is s 1(5) of that Act which states that
I should not make orders in respect of these children unless I consider
that it would be better to do so in terms of their best interests than
to make no order at all.
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Specific guidance on the issue of
circumcision was given by the Court of Appeal in Re J
(Specific Issue Orders: Muslim Upbringing and Circumcision) [1999]
2 FLR 678. That was a decision by Wall J who was subsequently upheld on
appeal by Thorpe LJ reported sub nom Re J (Specific Issue
Orders: Child’s Religious Upbringing and Circumcision) at
[2000] 1 FLR 571.
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At page 682, Wall J recorded the expert
evidence he had heard in relation to circumcision. He said:
“Circumcision in Islam
According to Dr Hinchcliffe, circumcision is not mentioned in the
text of the Koran, but in the Sunna (the practice of the Prophet
Mohammed) which is the second recognised source of law, it is
strongly recommended, and sayings from the Prophet himself are cited
in support of the practice. Thus although circumcision does not
occupy a prominent place in the traditional texts of Islamic law,
Muslims regard it as a necessity to fulfil their faith. That is
certainly the father’s position.
In Islamic law, responsibility for ensuring that a male child is
circumcised lies with the father, and Islam does not consider that it
is a decision for the child to make himself. The decision when to
circumcise is also made by the father, and the evidence is that
Muslim practice varies from locality to locality. According to Dr
Hinchcliffe, some jurists assert that the father must ensure that the
child is circumcised before puberty, whilst others state more
precisely that the child should be circumcised on the seventh day
after birth. The father himself was circumcised in Turkey when he
was 6 or 7.
Dr Hasan describes circumcision of a boy as:
‘… an obligatory duty which should
preferably be done at a
tender age which helps the wound to heal quickly. It is a father’s
duty to carry it out as soon as possible. [If] he doesn’t do it,
while the child is still a minor, he would be failing in this duty.’”
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The child in Re J was
5 years old when the case was considered by Wall J. In refusing the
application, the judge stressed that his conclusion was finely balanced
and depended on the facts in that case as he had found them to be. He
summarised the factors which had influenced his conclusion in the
following way (at pages 699-700):
“(1) Although born a Muslim, it is clear to me that J is going to
have an essentially secular upbringing in England. He is not going
to mix in Muslim circles, and his main contact with Muslims and the
Muslim ethos will be his contact with his father. J is therefore not
going to grow up in an environment in which circumcision is a part of
family life; or in which circumcision will be in conformity with the
religion practised by his primary carer; or in which his peers have
all been circumcised and for him not to be would render him either
unusual or an outsider. To the contrary, circumcision in the circles
in which J is likely to move will be the exception rather than the
rule.
(2) Circumcision is an effectively irreversible surgical intervention
which has no medical basis in J’s case. It is likely to be painful
and carries with it small but definable physical and psychological
risks. For it to be ordered there would have to be clear benefits to
J which would demonstrate that circumcision was in his interests
notwithstanding the risks. The principal benefits put forward are
J’s identification as a Muslim and the strengthening of his bond
with his father. The strength of each is substantially weakened, in
my judgment, by the facts of J’s lifestyle and his likely
upbringing. As I have already made clear, he is not going to be
brought up as a Muslim child, and the strength of his bond with his
father – viewed from his perspective rather than the father’s –
is unlikely to be weakened if he is not circumcised unless his father
chooses to allow the absence of circumcision to work to weaken it.
(3) J is in the middle of a hostile battle between his parents over
contact. He is to that extent a vulnerable child. The operation and
the period leading up to it are likely to be highly stressful for the
mother, who would find it difficult to explain to J why it was being
undertaken and would have grave difficulty presenting it to J in a
positive light. Furthermore, J is of an age and understanding to
feel pain and discomfort without at the same time being fully able to
understand why the operation was being carried out.
(4) J’s mother, who not only shares parental responsibility for him
with the father but cares for him on a day-to-day basis and is
currently the most important person in his life, is opposed to his
circumcision, and there is a rational basis for her opposition. It
is a strong thing to impose a medically unnecessary surgical
intervention on a residential parent who is opposed to it. In my
judgment, this should only be done if the evidence shows that J’s
welfare requires him to be circumcised. For the reasons I have
given, I do not think that the evidence overall shows that it is in
J’s interests to be circumcised.”
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The Court of Appeal unanimously upheld Wall
J’s decision for the reasons he gave and the point of principle that
the judge’s conclusion that s 2(7) of the Children Act 1989
does not enable a parent to arrange circumcision without the consent of
the other was correct.
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Re J was considered by
Baron J some six years later in the context of an application by a
mother, following family breakdown, for permission for both children to
become practising members of the Islamic faith and for her son to be
circumcised. The father opposed the application. He was a follower of
Hindu Jainism which forbade circumcision. The mother was concerned
that, if the children were not raised as Muslims within the Islamic
faith, she, and possibly her entire family, might be expelled from
their religious community. The case was reported as Re S
(Specific Issue Order: Religion: Circumcision) [2004] EWHC
1282 (Fam), [2005] 1 FLR 236. One of the judge’s reasons for rejecting
the mother’s application was explained by her Ladyship in this way
(para 83(k)):
“Circumcision once done cannot be undone. It may have an effect on
K if he wishes to practice Jainism when he grows up. He has been
ambivalent about his religion and is not old enough to decide or
understand the long-term implications. It is not in his best
interests to be circumcised at present. The Muslim religion, whilst
favouring circumcision at 10 years and below, does permit of an upper
age-limit of puberty or later in conversion. By the date of puberty
K would be Gillick competent and so he could make
an informed
decision.”
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Most recently, the issue of circumcision
was considered by Sir James Munby, President, in Re B and G
(Children)(No 2) [2015] EWFC 3, [2015] 1 FLR 905. That case
concerned two children (a girl of 3 and a boy of 4) who were born to
Muslim parents. The President was dealing with the case in the context
of a fact-finding hearing in care proceedings initiated by a local
authority which was concerned that the girl might have been subjected
to female genital mutilation (FGM) in one form or another. In his
review of the law in the context of whether or not FGM amounted to
‘significant harm’ for the purposes of s 31 of the Children Act 1989,
his Lordship dealt with circumcision as a parallel topic. Having
observed that some forms of FGM might be regarded as much less invasive
than male circumcision, he said this:
“[61] It is also important to recognise that
comparatively
few male circumcisions are performed for therapeutic reasons. Many
are performed for religious reasons (as in Judaism and Islam). However,
large numbers of circumcisions are performed for reasons
which, as the particular prevalence of the practice in, for example,
the English-speaking world and the non-Muslim Africa suggests, are
much to do with social, societal, cultural, customary or conventional
reasons as with anything else, and this notwithstanding the
justifications sometimes put forward, that circumcision of the male
is hygienic or has prophylactic benefits, for example, the belief
that it reduces the incidence of penile cancer in the male, the
incidence of cervical cancer in female partners and the incidence of
HIV transmission.
[62] Now there is a very simple but
important point to all
this. There is nothing in the case law to suggest that male
circumcision is, of itself, such as to justify care proceedings: see
Re J (Specific Issue Orders: Muslim Upbringing and
Circumcision)
[1999] 2 FLR 678, on appeal Re J
(Specific Issue Orders:
Child’s Religious Upbringing and Circumcision) [2000] 1 FLR
571, and Re S (Specific Issue Order: Religion: Circumcision)
[2004] EWHC 1282 (Fam), [2005] 1 FLR 236. On the
contrary,
judges in the Family Division have on occasions made orders providing
for non-therapeutic circumcision: see, for example, Re S
(Change
of Names: Cultural Factors) [2001] 2 FLR 1005, at 1015-1016 (T
v S (Wardship) [2011] EWHC 1608 (Fam), [2012] 1 FLR 230, was
a
case of a medically indicated circumcision). As against that, and as
Mr Hayes helpfully points out, there are voices in the Academy who
take a different view: see, for example, Christopher Price, ‘Male
Circumcision: An ethical and legal affront’ (May 1997) Bulletin
of Medical Ethics 128: 13-19, and Brian D Earp, ‘Female
genital
mutilation (FGM) and male circumcision: Should there be a separate
ethical discourse’ (2014) Practical Ethics.”
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Whilst accepting that these were ‘deep
waters’ into which he hesitated to enter, the President nevertheless
justified the distinction which the law made between the two in para 72
of his judgment in this way:
“Whereas it can never be reasonable parenting to inflict any
form of FGM on a child, the position is quite
different with male
circumcision. Society and the law, including family law, are
prepared to tolerate non-therapeutic male circumcision performed for
religious or even for purely cultural or conventional reasons, while
no longer being willing to tolerate FGM in any of its forms. There
are, after all, at least two important distinctions between the two.
FGM has no basis in any religion; male circumcision is often
performed for religious reasons. FGM has no medical justification
and confers no health benefits; male circumcision is seen by some
(although opinions are divided) as providing hygienic or prophylactic
benefits. Be that as it may, ‘reasonable’ parenting is treated
as permitting male circumcision.”
The evidence in this case
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The Experts
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With the exception of Mr Gordon Muir, all
the expert witnesses gave their oral evidence by means of a video link
with the court.
...
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Professor
Abdel Haleem
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Professor Haleem had prepared an expert
religious assessment of the Islamic religious basis for circumcision of
male children. He is a Professor of Islamic Studies at SOAS and was
instructed on behalf of the Guardian.
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In his report he confirms that the Qur’an does not mention circumcision
explicitly. The Islamic basis for circumcision is the words of the
Prophet Muhammad who described the procedure as “recommended practice”,
or sunna. It is also an essential aspect of
cleanliness in relation to the five daily prayers. His report refers to
the fact that there are different legal opinions as to the age at which
circumcision should be undertaken but there is a consensus that it must
have happened by the time a male child reaches the age of 10 because
that is the age at which they he is obliged to perform prayers (salãt).
Further, circumcision is seen as part of a Muslim’s identity. Without
undergoing the procedure a boy would not be considered to be a true
Muslim. It is regarded as an essential part of Islamic religious
tradition. In Professor Haleem’s view, a Muslim child’s relatives would
find it shocking if a family member had not undergone circumcision. In
this sense, both the religious and social implications for an
uncircumcised Muslim child are important factors.
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He was asked a number of questions about
the timing of the procedure. He explained that circumcision must be
performed by the time a Muslim boy “came of age”. That was generally
assumed to be by the time he reached 10 years because this was the
point at which he entered into a contractual relationship with God
(Allah) and participated in daily prayers with adult Muslim males. He
acknowledged that an uncircumcised boy would still be able to enter a
mosque and pray since he was unlikely to be asked whether or not he was
circumcised. However, he told me that a Muslim father is under a
religious duty to ensure every male child born to him did undergo the
procedure. He spoke about the social prejudice which a child would be
likely to suffer if it became known that he had not been circumcised by
the age of 10 and probably sooner. Given the ages of these children, he
believed they should be circumcised as soon as possible and could see
no reason to delay. A Muslim would be likely to say, “Why create
potential difficulties for these children? What is the harm of having
this done ? Why is there all this fuss?”. It seems to me that those rhetorical questions which he posed
demonstrate the extent to which circumcision is seen as an ordinary
incidence of being a Muslim (as Professor Haleem told me he was) but
they do not address the social and family situation of a child where
only one parent is a practising member of the Muslim faith.
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He dealt with this point when he was asked
questions on behalf of the Guardian. In a case where a family had mixed
religious beliefs, as is becoming increasingly commonplace in society,
he expressed the view that the issue of circumcision was likely to lose
the vital importance it currently held within Muslim society. However,
this did not derogate from the fundamental duty or obligation placed on
a devout Muslim father to ensure that his sons were circumcised in
accordance with his own religious beliefs.
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Dr
Naeem Ahmad
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Dr Ahmad is a consultant paediatrician who
works from a hospital in Nottinghamshire. He was instructed by the
Guardian to prepare a report to assist the court in relation whether or
not there was a medical basis for circumcising these children and, if
so, the risks or possible implications of the procedure.
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He referred to the wide debate in the
medical world and the absence of any consensus in the profession as to
whether the procedure carries sufficient health benefits to justify
carrying it out on medical grounds alone. If undertaken by an
experienced surgeon, he told me that the risks of complications are low.
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As to the specific risks associated with
circumcision, he set these out in his report as follows:-
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pain;
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risk of bleeding and infection;
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irritation of the glans;
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increased risk of meatitis (inflammation of
the opening of the penis);
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risk
of injury to the penis.
These risks may increase as a child gets older, but the overall risk
level is low.
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As to the potential benefits of the procedure,
these included the following:-
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a
decreased risk of urinary tract infections;
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a reduced risk of sexually transmitted
diseases;
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protection against penile cancer;
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a reduced risk of cervical cancer in female
partners;
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prevention of balanitis (inflammation of the
glans);
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prevention of phimosis (the inability to
retract the foreskin);
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general
cleanliness.
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When asked questions on behalf of the
mother, Dr Ahmad told me that, in relation to the surgical risks, he
himself had never undertaken a surgical circumcision. Most of his own
surgical experience was gained in the early 1980s when he worked in
India. His current experience as a consultant paediatrician lay in
diagnosing and managing children with all forms of non-accidental
injury.
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Mr Gordon Muir
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Mr Muir struck me as an impressive witness.
He was instructed on behalf of the mother. He works as a consultant
urologist at King’s College Hospital in central London, a position he
has held for almost twenty years. He is a registered urology specialist
at the General Medical Council. His written report was wholly compliant
with the requirements of Part 25 of the Family Procedure Rules 2010 and
confined to those matters which lay within his particular expertise. In
particular, he set out his experience in this field in these terms:
“In my practice I routinely offer treatment of foreskin and penile
disorders and have patients referred to me from all over the UK and
also from overseas to this end. For men with foreskin problems I
practise a number of treatments including non-surgical therapy,
minimally invasive surgery, and circumcision. I carry out medically
indicated circumcisions in children and adults. I operate on
competent adults who wish circumcision for non-medical reasons and
wish to proceed after informed consent.”
He told me during the course of his oral evidence that the large
number of circumcisions he performs enables him, as a surgeon, to
express his views without any bias one way or the other. [On the contrary, anyone who
performs a large amount of male genital cutting exhibits bias towards
the operation.] The views
he has expressed are based solely on the large body of empirical data
with which he is familiar, his own research and his many years of
professional experience in this field. That he has participated in a
wide-ranging number of medical studies and has published widely in
various medical journals is apparent to me from the extensive
bibliography appended to his report.
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For the purposes of compiling his report,
Mr Muir had seen these children’s medical records and confirmed that
there were no medical indications for performing circumcision on
either. His report concludes with this paragraph:
“I would not be able to make a convincing argument for circumcision
for these boys on medical grounds. Circumcision would remove the
perhaps 2% lifetime risk of needing a circumcision for foreskin
problems, and could reduce their risks of HIV or other STI’s were
they as adults to engage in high risk sexual practice or unprotected
sex in HIV endemic areas of sub-Saharan Africa (circumcision as a
young adult prior to engaging in sexual activity would also be
protective). Circumcision would have a significant risk of mild to
moderate post-operative surgical complications such as bleeding, tiny
risks of severe surgical complications such as major bleeding or
glans damage, and small risks of cosmetic or functional problems
needing to be addressed in adulthood. There is also the issue of
patients who feel unhappy or disenfranchised as adults and while the
risk may be small and as hard to qualify it is nonetheless present.”
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His report dealt with the risks and
benefits associated with non-therapeutic circumcision for these two
children. In general, about five
per cent of boys will suffer a
significant complication after circumcision with about one
in fifty
needing emergency treatment for bleeding. He told me that by
“significant” he meant anything over and above mild pain. At the
extreme end of the spectrum (albeit rare) are major complications such
as glans amputation, penile necrosis
and death. Whilst deaths are very
rare, they occur in Europe “every year”. He has personally treated five
boys who have suffered partial or complete amputation of the glans with
the Plastibell
device, a form of circumcision which he would never
recommend. Where they occur, these major complications
require complex
multiple plastic surgical operations with often unsatisfactory
outcomes.
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He referred to the lack
of proper or
adequate research into subsequent lack of sensation
although he did not
attach any particular significance to this risk or the psychological
sequelae, or non-physical effects of circumcision. Whilst there were a
number of websites and charities dedicated to men who feel they have
been harmed by the practice of circumcision, these were informed to a
large extent by a self-selecting group and thus little reliance could
be placed statistically on their reportage of symptoms. [But doesn't their very existence
point to a particular unsatisfactory outcome of male genital cutting
that should be taken seriously? Neither Mr Muir nor Mrs Justice Roberts
assign any value to the foreskin itself, or to having an intact penis.]
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He was asked about some of the benefits
which had been addressed by Dr Ahmed in his report. In relation to
phimosis, his clinical experience was that almost 90% of boys who
presented with this problem are cured by the application of steroid
cream. In cases of balanoposthitis, circumcision can be indicated but
less invasive surgical techniques such as frenuloplasty produce
excellent results as reflected in one of his own research papers (the
reference for which he provided). In terms of the more generally
perceived health benefits associated with HIV protection and non-HIV
sexually acquired infections, Dr Muir’s opinion was that there may be
some small benefit in circumcision but the studies have not been
compared with safe sex and condom use in at risk patients. As to
prevention of urinary tract infections, he said that to prevent one
urinary tract infection, over one hundred circumcisions would have to
be performed which he regarded as an untenable proposition. Similarly,
in terms of overall hygiene and cleanliness, he was of the opinion
that, from a medical point of view, normal bodily hygiene was all that
was required.
-
He was able to tell me about his personal
data (risk factors which all surgeons are required to maintain). One in
three hundred of his cases involving circumcision resulted in excessive
bleeding at the site of the wound. There was a 1.5% chance of surgical
revision in the following five year period and a 10% to 15% chance of a
minor infection requiring treatment with antibiotics or a dressing.
This data does not differ amongst patients’ respective age groups.
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When cross-examined by Mr Chapman on behalf of the
father, Mr Muir stressed that, in medical terms, the principle of
competence was an important factor to be taken into account. Children
should have competence before consenting to a procedure which was not
medically indicated. In the absence of any discernible or direct
medical benefit, a patient (be they child or adult) should always be
competent to consent to the surgery. If children were non-competent for
the purposes of giving their consent to surgery, he would view them as
non-competent to consent to surgery for religious reasons.
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In response to questions from the Guardian,
Mr Muir confirmed that circumcision was a simple and safe operation
when performed well but it nevertheless presented the risk of the
complications he had outlined. In terms of the appropriate procedure
were the court to authorise circumcision for these two boys, he told me
that sleeve circumcision was the preferred, and safest, option. If they
were old enough to consent to the procedure, they were usually old
enough to consent to a local anaesthetic which was safer than a general
anaesthetic. Here, the children would need a general anaesthetic if the
surgery was to be undertaken now. They would be off school for about 48
hours and would thereafter need to avoid contact sports for seven to
ten days.
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Thus, in one sense, the two medical experts
were approaching their task from different perspectives. Dr Ahmad does
not have the surgical experience which Mr Muir has because he is a
consultant paediatrician. He was certainly medically qualified to
provide me with an overview of the possible risks and benefits but he
did not have (and did not profess to have) the particular experience
and expertise which Mr Muir had of this surgical procedure and its
possible consequences. Dr Ahmad had not read Mr Muir’s report when he
gave his own evidence by video link and deferred to his colleague at
appropriate points in his evidence. Mr Muir had not only read Dr
Ahmad’s report; he sat in court to listen to his oral evidence. It was
clear that there were aspects of the medical evidence in respect of
which there were marked disagreements of emphasis and substance between
the two witnesses. On one view, it might be said that an experienced
surgeon who specialises nationally in problems arising out of
complications resulting from circumcision would be exposed to the
reality of these risks as part and parcel of his daily professional
life and thus more cautious in his approach to evaluating risk.
However, on balance, I found Mr Muir’s evidence to be careful and
helpful. He was not approaching his task from any religiously informed
perspective and that was not his function albeit that it is an
important aspect of the issues which need to be weighed and balanced in
this case. I heard separately from other experts in that respect.
-
The parents
The father’s evidence
-
The father told me that, having heard the
medical experts, he remained wholly committed to his application that
these children should be circumcised. He was able to convey to me in
very clear and direct terms the depth and strength of his religious
beliefs despite what he described as “some bad things” he had done in
the past. For himself and for his sons in due course, he said that
circumcision went to the very core of his identity as a Muslim man:
that was how essential it was in terms of way he perceived himself and
his children. His own father, his uncle and his grandfather were all
circumcised and it was a fundamental part of his personal and family
identity. He did not know how he would be able to look his father in
the eyes if his application is not granted. Both he and his family
would feel devastated. In this respect circumcision had both a
religious and a social importance which overrode any slight risk which
the procedure carried. In terms of its religious importance, his view
was that if the obligation had been created by Allah, “he
knows it is in our best interests”.
-
He was clearly disappointed and irritated
by the mother’s current stance on this issue. He felt that she had
“moved the goal posts”. She was a Muslim when they went through a
ceremony of marriage; they had discussed these issues at length and she
was keen that the children should be circumcised in accordance with
their (then) jointly held religious beliefs as early as possible. He
told me that the children mixed with his own Muslim friends and their
children during the time which they spent with him. He was teaching
them Arabic and they attended sessions at the Islamic school at the
local mosque. He described his experience of practising his religion in
a small rural village as being very different from the time he was able
to spend with a large group of extended friends when he visited London
with the children. He was, nevertheless, doing all he could to ensure
they were familiar with their religious heritage and Islamic beliefs
and festivals.
-
He told me that there had been no formal
enquiry by anyone at the mosque as to whether or not the children were
circumcised although the Imam was aware that there was an issue because
he had told him.
-
He wished the circumcision to be carried
out as soon as possible but he was not concerned about the procedure
used provided it was safe. He was happy for the surgery to be performed
in England and he would postpone the ceremony until later when he could
invite his family and friends in Algeria.
-
He was asked on behalf of the Guardian
whether he thought there might be an impact on his emotional bond with
the children were his application for their circumcision to be rejected
until they were old enough to make their own decision. This was his
reply:
“That is a very difficult question. All I can say is that I am
99% sure that these children will be circumcised during their
childhood. I am not saying I am going to go against what the court
orders. But I will do anything possible to ensure that they are
circumcised.”
....
The
mother’s evidence
-
The mother confirmed that her current
position in relation to the issue of circumcision was that the children
should have the right in due course to make decisions about what
happened to their own bodies at a time and age when they had sufficient
understanding to appreciate all the implications. She did not believe
the procedure was medically necessary. It was an irreversible and
permanent step which was likely to cause them pain and it was not a
decision which either she or their father should take now on their
behalves. She recognised the strength of his religious convictions and
was not seeking to place any obstacles in their practice of his faith
whilst they spent time with him. They could still attend prayers with
him and go to the mosque as often as he chose to take them, but a
decision in relation to such a final and irreversible procedure was
best deferred until the children reached a level of maturity to make
the decision themselves. She did not intend to bring them up in the
Islamic faith. Neither she nor her partner held any structured or
formal religious beliefs and the children had no Muslim friends at
their school.
-
She accepted that, following her earlier
conversion to Islam, and at a time when the children were very young,
she had agreed to circumcision. She said that if she had been asked
before she met the father what her views about circumcision were, she
would have been unable to provide an answer because the issue would not
have entered her sphere of experience. She explained that when she met
the father and fell in love, she wanted very much to please him. She
was happy to listen to his thoughts and wanted to defer to him. In
2009, when L was a small baby, he had persuaded her that it was a
simple procedure and one from which their son would very quickly heal.
She had other Muslim friends at the time whose babies had been
circumcised and she simply assumed that, as parents, they would do the
same thing. The father had wanted to delay matters to a time when the
children would be conscious of the procedure and recognise it as part
of their Muslim faith. He had also wanted it done in Algeria in the
midst of his family. The mother told me that it was only once she had
found the strength to leave the controlling environment of their
relationship that she was able to carry out her own research and form
her independent views on the subject. She told me,
“I don’t want my children to be exposed to pain, risk or harm
for the purposes of a culture of which I am not a part. I am not
saying that they should not be circumcised but only at a time when
they have made their own decision. It is not mine to make for them
any more than it is the father’s. I was very surprised to discover
the procedure carries far more risk than I had imagined having now
had an opportunity to look into it.”
...
-
When she was asked questions by Miss
Saunders on behalf of the Guardian about the father’s ability to put
the children’s interests above his own, she replied in this way:
“I absolutely believe that he holds his religious beliefs
above
the children’s wellbeing. I think his fundamental core religious
beliefs and his need for them to be brought up as Muslims is more
important to him than any objective view of the children’s best
interests. He feels it is a reflection on the strength of his own
religious convictions as a Muslim to achieve the children’s
observance of that religion.”
...
-
The Guardian
-
I heard from MS, the children’s Guardian,
at the conclusion of the evidence. His position, having heard that
evidence, is as follows:
...
-
In relation to the issue of circumcision,
the Guardian remains neutral but has put forward a number of
considerations from the children’s points of view. These I shall come
on to consider shortly.
....
-
My
Conclusions
...
-
Circumcision
-
This is a separate issue and I look at it afresh,
albeit that the children’s welfare remains my paramount consideration.
Once again, I bear in mind all the factors which emerge from the
welfare checklist in s. 1(3) of the 1989 Act. In this context, I must
also consider s. 1(5) of that Act which requires me to make no order
unless I reach a clear conclusion that to make the orders which the
father seeks is not only in their best interests but is better than
making no orders at all.
-
I have already rehearsed at some length the
expert evidence which I heard about the central importance of
circumcision as an essential part of Muslim life as well as the medical
evidence in relation to the nature of the procedure and the inherent
risks it carries. I have to look at
this issue from the perspective of
the children whose interests outweigh any particular position adopted
by either one of their parents. I acknowledge that in so doing I am
treading into the “deep waters” identified by the President in Re
B and G (Children)(No 2) but the polarised positions of the
parties make that course inevitable. I bear in mind that
the mother is
not set against circumcision as an option for these children in the
future when they are old enough to consent to the procedure themselves
but she does not agree to it now in circumstances where, if it is to go
ahead, the court will have to consent (or give permission) on their
behalves.
-
I accept that this is a genuine application
on the part of the father. His motives are driven by his deep-seated
religious convictions and his perception of his obligations as a devout
Muslim father. The Guardian acknowledged the fundamental importance of
circumcision as an “obligation” for a Muslim father. To an extent, his
application to this court is a partial discharge of that obligation or
duty. In the face of opposition from the mother, he has pursued an
entirely legitimate application, albeit that it is one which will be
decided in the context of English law. In accordance with Article 8 of
the European Convention on Human Rights, incorporated into our domestic
legislation by the Human Rights Act 1998, the right to respect for his
and the children’s family life includes his freedom to practice his
religion. 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.
-
The following factors appear to me to be
relevant to the balancing exercise which I have to perform in this
context.
-
First, these were children born to parents
who were both exercising their Muslim faith at the time of their birth
(the father through the incidence of his birth into a Muslim family,
his nationality and his upbringing; the mother by choice). She accepts
that, at a time when their elder son was an infant, she accepted that
he would be circumcised in accordance with the wishes of the father.
For so long as they shared a common home with the children, the
expectation was that these children would be brought up as Muslim
children. Their parents socialised with other Muslim families and the
mother’s evidence is that she was aware that it was common practice for
their friends’ children to undergo circumcision.
-
Secondly, the children’s circumstances
changed as a result of their parents’ separation and the disintegration
of their shared family existence. L was then 2 years old and B had only
recently celebrated his first birthday. Whilst there is some issue as
to the precise point at which the mother abandoned her Muslim faith,
the children are now living in a home where they are receiving an
essentially secular upbringing. That is likely to remain the case
throughout their respective minorities. Their exposure to Muslim
circles and socialising within those circles are likely to be confined
to those periods of time which are spent in their father’s care.
-
Thirdly, since his separation from the
children’s mother, he has ensured that, whilst in his care, they are
fully involved in the Muslim faith, or as fully involved as it is
appropriate for them to be at this age and stage of their lives. With
his encouragement, they attend classes at the mosque where they pray
with their father. They observe prayers appropriately at his home. They
are receiving instruction in the Arabic language and can already
recognise some words and phrases in religious texts. They will become
aware, if they are not already, that their father has been circumcised.
However, they will not grow up in an environment within their mother’s
home where circumcision or the observance of daily prayers is part and
parcel of family life in that household. They are already aware that
their mother does not espouse the Muslim religion and that there is a
difference between them and their younger half-sister in this regard.
Whether or not with the encouragement of the father, I accept that
there has been some spontaneous reference by the boys at their mother’s
home to C being different from them in this respect.
-
Fourthly, the likelihood is that they will
continue to spend time attending the mosque with their father as they
develop into more independent young boys and, if they are not
circumcised, there is a risk that they may feel alienated from that
religion or from their peers who have been circumcised. It is not
unreasonable in these circumstances to envisage that they may be the
subject of either teasing or some gentle, if well-meaning, pressure. In
this event, there is a risk of further litigation because the mother
made it quite clear to me that, whilst she will not seek to influence
the children one way or the other, she will not hesitate to bring the
matter back to court if she perceives the father, or others at his
behest, to be applying inappropriate pressure to the children.
-
In this context, I believe this risk is a
real one. The father told me that he was as certain as he could be that
these children would indeed be circumcised during their childhood. In
my judgment, consciously or not, he would find it almost impossible not
to convey to these children the strength of his own convictions that
circumcision is not only the inevitable result of the discharge of his
parental obligations, but a perfectly normal incidence of Muslim life
and devotion to Allah. This lack of
insight on the father’s part
placing, as it will do, a burden on the shoulders of these children, is
not a positive indicator in favour of circumcision but it
is
nonetheless a factor which I have to balance with all the others.
-
Thus, in the light of the factors I have
mentioned above, circumcision would confirm the identity of these
children as part of the Muslim community. It would eliminate the
father’s anxieties and would remove the likelihood of the children
being the subject of any further attempts to influence them one way or
the other by either parent. The procedure is irreversible: once it is
done it is done. The father would have no further reason to complain
and the mother would no longer be in a position to object.
-
Those factors must be weighed in the
balance against the fifth, and important factor, that, just as the
father is passionate in his cause and the reasons for circumcision, the
mother is resolutely opposed to it at this point in time. As the
authorities make clear, 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. An inevitable consequence of
granting the father’s application would be the emotional pressure on
the children caused by the mother’s distress. However hard she tried to
contain her emotions, I do not believe she would be able to shield the
children entirely from her sense of distress on their behalves.
The
strength of her convictions was all too obvious from the witness box.
There is a rational
basis for the mother’s opposition and, if the court
sanctions the procedure, it is something which she is going to have to
live with on a daily basis as a constant reminder of the parental
conflict which exists between her and the father.
-
I remind myself, too, that as a result of
that parental conflict these children have been the subject of
litigation for the majority of their young lives. That is not good for
any child and it makes them vulnerable to adult tensions to which they
should not be exposed. I believe that
this mother would find it difficult to present the issue of
circumcision to the children in a positive light and they, in turn, are
unlikely to understand why they are being put in a position of pain and
discomfort – if only for a short period of time – if there is no genuine medical need
for the operation to be carried out.
-
So, too, as they spend time within their
non-Muslim circle of friends and their local non-denominational school
community, they may feel different
and slightly isolated if they are the only ones to have been circumcised.
-
A further factor is that the expert
evidence which I heard from Professor Haleem suggests that there is no overriding imperative to
circumcise these children before the age of puberty. The
father’s evidence was that, whilst his parents would find the whole
situation very strange, he did not anticipate that they would
discriminate in any way in respect of their grandchildren whether or
not they were circumcised. There is already evidence that the local and
London mosques which the children attend would continue to allow them
to participate in religious community life regardless of their state of
knowledge as to whether or not the children were circumcised.
-
It is a finely balanced decision but one in
respect of which I have reached a clear conclusion. 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 regardless of
the expertise with which the operation is performed. There must be
clear benefits which outweigh these risks which point towards
circumcision at this point in time being in their best interests before
I can sanction it as an appropriate course at this stage of their young
lives.
-
Taking all these matters into account, my
conclusion is that it would be
better for the children that the court make no order at this stage in
relation to circumcision than to make the order which the father seeks.
I am not dismissing his application on the basis that they must develop
into adulthood as uncircumcised Muslim males. I am simply deferring
that 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. The safest point in time to have
carried out the procedure, according to Mr Muir, has long since passed.
[Not so.
Adult genital cutting is much safer than infant, because the penis has
reached its full size.]
....
-
In all other respects, the current child
arrangements order will remain in place with a suitable modification
for the additional overnight stay in alternate weeks. The order will
continue to provide for such further or additional contact as they
parties may agree. I am not proposing to provide now for any further
incremental changes to contact. I have confidence in these parents to
continue the preliminary steps of the dialogue which they have started
in this respect. The prohibited steps order will remain in place
preventing the removal of either child from the jurisdiction of England
and Wales. I shall dismiss the
father’s application in respect of circumcision and I propose to
include a declaratory recital in my order recording my view that it is
not in the children’s best interests to undergo the procedure at this
point in time and, in any event, until they are competent in terms of
their age and maturity to make the decision for themselves.
...
Order
accordingly
...
Family
Law Reports 2015]
1 FLR 905]
To
the
full judgement. |