WALL J
2, 3, 4 MARCH, 6 MAY 1999
The English mother, who was a non-practising Christian, met the father, a non-practising Muslim of Turkish origin, whilst on holiday in Turkey in 1992. They married in Turkey later that year and, whilst the mother was prepared to convert to Islam and went through a religious marriage ceremony, she did not in fact do so. Following their return to England in February 1993 and despite the birth of their son, J, in March 1994, their marriage did not endure and they separated when J was two and a half years old. The mother left the matrimonial home with J, who remained with her; a position which was not challenged by the father. Thereafter the father made applications, inter alia, for two specific issue orders under s 8 of the Children Act 1989 (i) that J be brought up in the Muslim religion and (ii) that in order to fulfil his paternal duty to J within Islam, J be circumcised thereby confirming J's personal and religious identity and thus his upbringing. The district judge made a prohibitive steps order preventing the father from removing J from the jurisdiction pending final determination of his applications. Both applications were opposed by the mother, and by the Official Solicitor acting as J's guardian ad litem.
Held – The applications would be dismissed for the following reasons—
(1) The court, in approaching the question of a child's religious upbringing, would apply the paramountcy of welfare test under s 1 of the 1989 Act to the particular facts of the individual case. A relevant factor was each parent's religious beliefs and practices. Applying those principles to the present case, whilst under Islamic law J was a Muslim, it was clear he would not be brought up in a Muslim environment; his father did not actively practice his religion or mix in Muslim circles. Circumcision apart, since all the father requested was the right to instruct J about Islam at the fairly simple and rudimentary level at which he understood it himself, those aspects of J's upbringing could be properly addressed by the father during contact. Furthermore, it was not practical to make an order that a child whose home was with his non-practising Christian mother should be brought up a Muslim.
(2) Where two parents, jointly exercising parental responsibility for a male child caused him to be ritually circumcised in accordance with the tenets of their religion, that exercise of parental responsibility was lawful. However, where there was disagreement between those who had parental responsibility for the child, including a local authority exercising parental responsibility under a care order, circumcision was not to be carried out without the leave of the court, which would determine the question by applying s 1 of the 1989 Act to the facts of the individual case. Although it was clearly relevant that mainstream medical opinion required both paternal and in particular maternal consent when the father did not have parental responsibility, it was not determinative of the issue. The court plainly had the jurisdiction, in an appropriate case, to override a maternal veto, and if it did so, it would obviously be proper for the doctor to carry out the procedure. However the maternal veto was clearly a very powerful consideration in the welfare equation, particularly where, as in the present case, the parents were estranged, the mother did not share the same cultural and religious stance as the father, and she was the parent with residential care of the child. On the facts of the present case, there would be a prohibited steps order preventing the father from arranging or permitting J to be circumcised without the leave of the High Court.
Cases referred to in judgment
Haleem v Haleem (1975) 5 Fam Law 184, CA.
Hawksworth v Hawksworth (1871) 6 LR Ch App 539,[1861–73] All ER Rep 314, CA.
R (a minor)(religious sect), Re [1993] 2 FCR 525, CA.
R v Brown (Anthony) [1994] 1 AC 212,[1993] 2 All ER 75,[1993] 2 WLR 556, HL; affg [1992] QB 491,[1992] 2 All ER 552,[1992] 2 WLR 441, CA.
Application
The father, a Turkish non-practising Muslim, applied under s 8 of the Children Act 1989 for two specific issue orders:(i) that his son, J, be brought up in the Muslim religion; and (ii) that J be circumcised, following the break up of his marriage with the mother, a non-practising Christian, with whom the child lived. The case was heard in chambers and judgment was handed down in open court. The facts are set out in the judgment.
David Harris QC and Helen Matuk for the mother.
Lindsey Kushner QC and Sally-Ann Ross for the father.
Michael Nicolls for the child.
The names of the instructing solicitors are omitted to prevent identification of the whereabouts of the child.
Cur adv vult
6 May 1999. The following judgment was handed down.
WALL J.
In these proceedings, the father of a male child (J), born on 23 March 1994 and thus five years old, seeks two specific issue orders under s 8 of the Children Act 1989. The first is that J be brought up in the Muslim religion. The second is that he be circumcised. Both applications are opposed by the child's mother, and by the Official Solicitor, who is J's guardian ad litem in relation to these aspects of the case. There is also an outstanding issue between the parents about aspects of the father's future contact with J, which I propose to address in a separate judgment.
This judgment is being handed down in open court because, although the case ultimately turns on its own facts, it raises important issues on which there appears to be no authority. I am, however, more than usually anxious to ensure that the child in question should not be identified. I therefore propose to refer to him throughout this judgment by an initial, J: I also propose to refer to his parents only as the mother
and the father
respectively. Clearly, nothing must be published which in any way identifies J or his parents or the location in which they reside, or the school which J attends.
Throughout this judgment I propose to use the phrase ritual circumcision
to mean circumcision carried out for religious or social purposes in order to distinguish it from surgical interventions designed to treat particular medical conditions.
It should, however, be made clear at the outset that although the father in this case seeks J's circumcision both in order to fulfil his paternal duty to J within Islam, and to confirm J's status as a Muslim, he is content that the operation should be carried out in hospital under general anaesthetic by a qualified medical practitioner.
For the purposes of these two applications, I heard oral evidence from both parents, and from Dr S, a consultant paediatrician instructed by the Official Solicitor. I had written evidence from an expert in Islamic law (Dr Doreen Hinchcliffe, a member of the English Bar) and from Dr Suhaib Hasan, the Secretary to the Islamic Shariah Council in London. I was also provided with a number of medical papers to which I will refer in due course.
The father is 27. He is Turkish by birth and upbringing, and retains his Turkish nationality, although he is permanently resident in the United Kingdom and also has a British passport. He is a Muslim, although, as he freely accepts, he does not actively observe many of the tenets of his faith.
The mother is 29. She is English, and apart from a short period around the time of her marriage to the father, when she lived with him in Turkey, she has lived throughout her life in England. She is notionally a Christian and a member of the Church of England but, like the father, she is non-practising.
The parents met whilst the mother was on holiday in Turkey in the summer of 1992. Later that year she returned to Turkey, and she and the father were married in Turkey on 18 November 1992. It was a first marriage for both of them.
The parents underwent both civil and religious ceremonies of marriage. The mother's case is that whilst she was, at the time, prepared to convert to Islam, she did not in fact do so. She says that she was given some words to pronounce in Turkish at the religious ceremony; that these words were written out phonetically so that she could pronounce them; but that as she does not speak Turkish she had no understanding of what they meant, and nobody explained their significance to her. Whether this is right or wrong (the mother was a very unsatisfactory witness who, in an earlier hearing, gave what she now acknowledges was perjured evidence in relation to important aspects of the father's application for contact with J) it is plain to me that the mother is not a Muslim. She has neither knowledge of Islam nor any interest in acquiring it. It is clear to me that unless specifically directed to do so by the court, she would take no steps to acquaint J with Islam, or the Turkish side of hisinheritance.
The father says that not only did the mother tell him before the marriage that she would convert to Islam (although, in the event, he agrees that she did not do so); he also says that whilst the mother was pregnant with J she gave her agreement that any male child would be circumcised. I accept that evidence.
Following the parents' return to England from Turkey in February 1993 the marriage, despite the birth of J in March 1994, did not endure, and they separated on 29 September 1996, when J was aged two and a half. The reasons for the breakdown of the marriage are immaterial to this judgment. The mother left the matrimonial home, taking J with her. He has, since that date, made his home throughout with his mother, and the father has at no stage sought to challenge that position: to the contrary, he has made it clear on many occasions that in his view J's proper place of residence is with his mother.
The mother petitioned for divorce on 3 October 1996 and on the same day applied to the county court ex parte for an order that the father be restrained from removing J from her care and from the jurisdiction of the court. On the return date of the application, 14 October 1996, a circuit judge, by consent, made a residence order in the mother's favour in relation to J with an order for reasonable contact with J by the father.
There was a schedule of agreed contact which was set out in the order of the court. The father also gave undertakings not to remove J (1) from the mother's care save for purposes connected with contact and (2) from the jurisdiction of the court. Those undertakings were expressed to last until 14 January 1997.
Unwisely, the father refused thereafter to renew the undertakings, and on 4 February 1997 a district judge made a prohibited steps order preventing the father from removing J from the jurisdiction pending final determination of his applications (inter alia) for specific issue orders that J be brought up in the Muslim religion and that he be circumcised, which he had issuedon 10 January 1997.
As will be apparent, the father's applications have taken an unconscionable time to come to a hearing. The reason for this is that at various stages, directions given by the court have simply not been obeyed. The result, undoubtedly, has been an overall heightening of tension between the parties.
J's contact with his father has been problematic, and the issue has been before the court on a number of occasions. The mother's attitude to it latterly has been, at best, ambivalent and at worst obstructive. In order to frustrate the father's contact she even, at one point, went to the extent of lying on oath about both J's residence and where he was at school. She has furthermore persuaded herself that it is the father's intention permanently to remove J from the jurisdiction and from her care, and either to place him with his paternal grandparents in Turkey or to go and live with him inTurkey.
For reasons which I have already given in a judgment delivered in chambers on 25 November 1998 I am satisfied (1) that contact between the father and J is in J's best interests;(2) that J both greatly enjoys and benefits from contact with his father; and (3) that the father has no intention of removing J either from his mother's care or (apart from holidays) from the jurisdiction of the court. I am also clear that it is in J's interests, in due course, to visit Turkey in order to meet members of his extended family on the father's side.
The question of the father taking J to Turkey on holiday is, however, linked with the question of his circumcision. If I decide that J should not be circumcised, the question arises as to whether or not the father's family and/or a Turkish court would accept that decision and feel themselves bound by it. The father assured me in evidence that he would respect the English court's decision, however much he might disagree with it, and would not seek to have J circumcised in Turkey. The father also recognised that if J returned from Turkey circumcised that would constitute a clear contempt of the English court.
The question of a holiday for J in Turkey with his father raises a number of other issues; and for a variety of reasons (including the inter-action between the questions of circumcision and leave to the father to remove J from the jurisdiction to Turkey for a holiday), I took the view that it would be sensible to deal first with the issues of religious upbringing and circumcision.
These are accordingly addressed in this judgment. The question of the holiday in Turkey will then be dealt with once this judgment has been handed down.
I am satisfied that in Islamic law, J is a Muslim. The evidence of Dr Hasan is that, in Islam, children of parents either of whom is Muslim are considered Muslims: J has a Muslim father, therefore he is a Muslim in the eyes of Islam.
That opinion is supported by Dr Hinchcliffe, who reports as follows:
A Muslim woman may never validly marry a non-Muslim man. The law, however, allows a Muslim male to contract a marriage with a non-Muslim woman, provided she belongs to one of the revealed religions, ie Judaism or Christianity. Any child of such a marriage is a Muslim. It is a principle of Islamic law that the child of a Muslim father is always considered to be a Muslim.
It is, therefore, clear to me that in Islamic law, J is to be regarded as a Muslim.
Is the position the same in English law? J's mother, who has a residence order and is J's primary carer, is nominally a Christian. J is five, and attending a local state primary school. He is being brought up in an essentially secular household. The only contact he has with Islam is through his father. The mother has no Muslim friends and no connections with any members of the Muslim community. The father, likewise, does not appear to have Muslim friends or mix in Muslim circles. The evidence does not disclose that there are any other Muslim children at J's school.
In his clear and careful submissions on this point, counsel for the Official Solicitor, J's guardian ad litem, having accepted that in the eyes of Islam, J is a Muslim, argues as follows:
The position in English law is not so clear cut. The Official Solicitor's submission is that the religious persuasion a child is being brought up in must be a matter of fact, to be determined from all the relevant circumstances. Thus, a child of Muslim parents who is too young to make a decision about his religious convictions will be regarded as being brought up in the Muslim faith. In [J]'s case, the evidence is that he has had very little exposure to Islam. He lives with his mother who was baptised as, and thinks of herself as, a Christian, although she does not attend church services. From the evidence, the practice or philosophy of Christianity appears to play a very small part in her life. She does not see [J] as a Muslim child. [J]'s father is Muslim as far as Islamic law is concerned, and would probably be so regarded in English law. Equally, however, he has not attended a Mosque whilst in England and last attended one in Turkey some three years ago. The father's expectations of observance seem to be that of a non-practising Muslim. In English law, therefore,[J] would seem to be being brought up as a
non-practising Christian
in accordance with the convictions of his mother with whom he lives and as a non-practising Muslim
when he stays with his father. He therefore has a mixed heritage and an essentially secular lifestyle. He does not have a settled religiousfaith.
I respectfully agree with that analysis by the Official Solicitor.
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 his father, and Islam does not consider that it is a decision for the child to make for 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 six or seven.
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.
The father's two applications are separate, but clearly closely inter-linked. Each is for an order under s 8 of the Children Act 1989, and is governed by the paramountcy of welfare principle in s 1. The welfare checklist' under s 1(3) applies to each.
The father sees circumcision as an essential part of J's personal and religious identity and thus of his upbringing. The Official Solicitor agrees that ritual circumcision is a question of upbringing
for the purposes of s 1 of the Act: however, he argues that the decision whether or not to order J to be circumcised is effectively dependent on (alternatively should be heavily influenced by) the broader question of whether or not he is to be brought up as a Muslim.
In para 34 of his report he puts the matter thus:
I do not consider it likely, on the present evidence, that [J] will mix in a Muslim environment and have increasing contact with the Muslim community. It is this which might make it possible to view circumcision as promoting his welfare. Without that likelihood, there is nothing to weigh against the evidence as to the medical risks.
Whilst, for reasons which will emerge, I do not accept that proposition in the stark form in which it is advanced, I do agree that the question of [J]'s circumcision must be seen in the broad context of his overall upbringing, and accordingly it seems to me sensible to look at the question of religious upbringing first.
Up until 1925, the law was that, unless there were special circumstances, children had to be brought up in the religion of their father, although the stresses that imposed were recognised as early as 1871 by Mr Wickens, the Vice-Chancellor of the Duchy of Lancaster in Hawksworth v Hawksworth (1871) 6 LR Ch App 539,[1861–73] All ER Rep 314. In that case, as the headnotereads ((1871) 6 LR Ch App 539):
A Roman Catholic died leaving a widow who was a Protestant, and an infant daughter, then six months old. He left no directions as to his child's religious education. The child was brought up by her mother as a Protestant until she was eight years and a half old. A suit having been instituted for the administration of the father's estate, the Court made an order that the child should be brought up in the Roman Catholic faith. The Court did not think it advisable to have an interview with the child.
Mr Wickens V-C, having shortly stated the facts, continued (at 540):
I must, I conceive, hold that the child is to be brought up in the father's faith—that is as a Roman Catholic—unless there are special circumstances to exclude the general rule … Were I at liberty to follow my own opinion, I should have no hesitation in acceding to Mr. Jackson's argument. For to direct that this ward shall be brought up in the Roman Catholic faith will be to create a barrier between a widowed mother and her only child; to annul the mother's influence over her daughter on the most important of all subjects, with the almost inevitable effect of weakening it on all others; to introduce a disturbing element into a union which ought to be as close, as warm, and as absolute as any known to man; and lastly, to inflict severe pain on both mother and child. But it is clear that no argument which would recognise any right in the widowed mother to bring up her child in a religion different from the father's can be allowed to weigh with me at all.
The rule that children had to be brought up in the religion of their father was abolished by s 1 of the Guardianship of Minors Act 1925, and although many parents (including J's mother) would not, today, regard religion as the most important of all subjects
, the thrust behind Mr Wickens V-C's observations in Hawksworth v Hawksworth seems to me to have stood the test of time and to provide a valid rationale for not insisting that a child be brought up in a religion which is not that of the residential parent.
The mother on this point puts forward the same argument as the Official Solicitor. Whilst accepting that in the eyes of Islam J is to be regarded for all time as being a Muslim, she argues that in English law the position in Islamic law is but one factor to be taken into account in determining the religious upbringing (if any) required in J's welfare interests, and that the weight (if any) to be attached to the position of Islam must necessarily depend on the actual and potential importance of Islam in the child's life. Her counsel's skeleton argument continues:
In principle, however, it is normally wholly inappropriate for the court to require a child to be brought up in a particular religion, contrary to the wishes, beliefs, and way of life of the residential parent. To impose upon a child a religious upbringing which is not shared by, and perhaps resented by, the residential parent is to expose the child to a significant risk of confusion, conflict of loyalty, and a damaging perception that he is in important respects incompatible with the psychological and emotional environment in which he lives. His consequential distress and resentment may impose strains upon his relationship with his carer and/or with the non-residential parent who has forced him into what he perceives to be an unacceptable position.
Whilst, in my judgment, this passage somewhat over-states the case, its underlying thrust seems to be sound when applied to the facts of this particular case.
In this context it is, I think, highly relevant to look at what, in practice, the father seeks so far as J's religious upbringing is concerned. The relief sought by the father on this aspect of the case, as set out in the skeleton argument prepared by his counsel, is as follows:(1) that J be circumcised as required by the Muslim religion;(2) the right to teach J about Islam and God to familiarise him with Muslim practices;(3) to celebrate Id Mubarak with him;(4) for J not to eat pork. At the same time, the father is expressly content:(5) that J should enjoy Christian Festivals such as Christmas and Easter;(6) that he should learn about Jesus and the prophets; and (7) that he should be allowed to eat meat which is not Halal meat (except pork).
It is common ground that the court must apply the paramountcy of welfare test under s 1 of the Children Act 1989 to the question of a child's religious upbringing, and that the welfare checklist under s 1(3) applies. It is also clear to me that each case will depend on its particular facts.
The process of deciding whether or not to make a specific issue order involves a consideration of s 1(5) of the Act. I must not make an order unless I consider that doing so would be better for J than making no order at all.
The Children Act 1989 does not impose any obligation on parents in respect of religious upbringing or instruction. Section 3, which defines parental responsibility, describes it as—
all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
Parental responsibility thus clearly includes the right to bring up children in a particular religious faith, or in none.
The court's powers in private law proceedings to control the exercise of parental responsibility by one or both parents are contained in s 8 of the 1989 Act. A specific issue order
under that section is defined as—
an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parentalresponsibility for a child.
A prohibited steps order, under the same section, is defined as—
an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court.
Section 11(7) also empowers the court to give directions in relation to any s 8 order about how it is to be carried into effect
, and to impose conditions which must be complied with by any person with whom the child is living.
Parts I and II of the 1989 Act are otherwise silent on the specific question of religious upbringing, although the question of religion is clearly embraced within the welfare checklist
in s 1(3) of the Act under the heading educational needs
in s 1(3)(b); under background
in s 1(3)(d); in an appropriate case, it could also come within the likely effect on (the child) of any change in his circumstances
in s 1(3)(c). Furthermore, it may be relevant to the capacity of each of the child's parents in meeting his needs: s 1(3)(f).
It is noticeable that whilst no restrictions are placed on parents by Pt II of the Children Act in relation to the religious upbringing of their children, local authorities, under s 33(6)(a) are prohibited from causing children in their care to be brought up in any religious persuasion other than that in which such children would have been brought up if care orders had not been made. In addition, the particulars to be taken into account by a local authority in considering suitability of persons and household, when making any placement decision
about a child in its care include religious persuasion and degree of observance, racial origin and cultural and linguistic background
: see Sch 1, para 1(h) to the Placement of Children with Parents, etc Regulations 1991, SI 1991/893. These provisions, in my judgment, underline the freedom which parents have over the question of their children's religious education and upbringing.
The attitude of the courts to the question of a child's religious upbringing is clear. The religious beliefs and practices of the parents are relevant factors to be taken into account when applying the paramountcy of welfare test. The approach is aptly summarised by Purchas LJ in Re R (a minor)(religious sect) [1993] 2 FCR 525 at 534:
It is no part of the court's function to comment upon the tenets, doctrines or rules of any particular section of society provided that these are legally and socially acceptable . . The impact of the tenets, doctrines and rules of a society upon a child's future welfare must be one of the relevant circumstances to be taken into account by the court when applying the provisions of s. 1 of the Children Act 1989. The provisions of that section do not alter in their impact from one case to another and they are to be applied to the tests set out in accordance with the generally accepted standards of society, bearing in mind that the paramount objective of the exercise is promoting the child's welfare, not only in the immediate, but also in the medium and long-term future during his or her minority. This is well established.
Applying these principles it would, of course, on appropriate facts, be open to the court to decide that a child should be brought up in a particular religion, even though that religion was not one practised by the parent with whom the child resides, although such a course would be unusual. In each case, the welfare test under s 1 of the Act must be applied to the particular facts of the individual case.
The reality of this case is that J is not going to be brought up in a Muslim environment. He is not going to mix in Muslim circles. He is unlikely to have many Muslim friends. He will be living in a non-practising Christian household. When with his father he will not be expected to attend the Mosque. His father does not actively practice his religion, or mix in Muslim circles.
Circumcision apart, all that the father requests in this case is the right to instruct J about Islam at the fairly simple and rudimentary level at which he presently understands it himself. He does not request outside instruction for J or that his son should attend the Mosque. It therefore seems to me that these aspects of J's upbringing can properly be addressed by the father during contact.
In these circumstances, and given the level of the relief which the father seeks, I do not think it necessary to set out the terms of s 1(3) of the Act and to go through all its provisions in turn, although I have, of course, had regard to them. I do not think it would be better for J to make an order on this aspect of the case. I also agree with the Official Solicitor that, on the facts of this case, it is not practical to make an order that a child whose home is with a mother who is a non-practising Christian should be brought up as a Muslim. In my judgment, therefore, the no order
principle in s 1(5) applies to this aspect of the case.
As to eating pork, this is an issue which, in my judgment, should be a matter for compromise and agreement between the parties. The mother, I think, would be wise to respect the father's views about it. However, it does not seem to me to be in J's welfare interests for me to make a specific order in relation to it.
In so far as authority is relevant to the particular facts of the instant case, the decision nearest in point seems to me to be Haleem v Haleem (1975) 5 Fam Law 184, in which the Court of Appeal reversed a judge who had split the two sons (aged six and one) of a practising Muslim father and an agnostic mother on the basis that the father would be able to provide the elder boy in particular with a religious education. Making an order that both children reside with the mother, the Court of Appeal took the view that whilst the father set great store by both children being brought up in the Muslim faith and culture, the court had to consider other factors when applying the welfare test, not least the fact that the children were going to live in England and attend English schools, and needed to be brought up together. The Court of Appeal also took the view that the children would have the opportunity to pick up Arabic and to absorb their father's outlook during periods of contact.
This latter consideration seems to me to apply particularly to the instant case. The father's perspective, of course, is that circumcision is an essential element of a male Muslim's identity. However, so far as the remaining items identified by the father as required for J's religious upbringing are concerned, it does not seem to me that an order is either necessaryor appropriate.
There will, accordingly, be no order on the father's application that J be brought up in the Muslim religion.
The only judicial reference which counsel were able to find in relation to male circumcision is a dictum of Lord Templeman in R v Brown (Anthony) [1994] 1 AC 212 at 231,[1993] 2 All ER 75 at 78–79, which is clearly obiter. The case concerned a number of sado-masochistic men who were convicted of assaults upon each other, notwithstanding that each had consented to the assaults in question. Lord Templeman said:
In some circumstances violence is not punishable under the criminal law. When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities.
J is plainly not in a position to give an informed consent to his circumcision, and that consent must, accordingly, be given either by those with parental responsibility for him, or by the court. In the instant case, each parent has parental responsibility, but they do not agree. It follows that the decision must be taken by the court.
Lord Templeman's view that ritual male circumcision carried out pursuant to consent given by a child's parents is lawful is supported by the Law Commission, in its consultation paper number 139 entitledCriminal Law. Consent in the Criminal Law. A consultation paper (1995). At para 9.2 there appears the following statement:
Male circumcision is lawful under English common law. Male circumcision is insisted on by Islamic and Jewish law. It is generally accepted that the removal of the foreskin of the penis has little, if any, effect on a man's ability to enjoy sexual intercourse, and this act is not, therefore, regarded as a mutilation. The traditional reason for male circumcision appears to have been a hygienic one. Several respondents supported the continuing legality of ritual circumcision in general terms, and ACPO [the Association of Chief Probation Officers] said that it would be desirable to make the position entirely clear by formulating rules as to the nature of the consent given by the victim and the limits and the circumstances in which consent is legally effective. Since ritual circumcision is customarily carried out by someone who is not a qualified doctor, the practice of male circumcision would not be protected by a purely medical exemption.
~ See The Law Commission Consultation Papers vol 23, p 119–120.
The lawfulness of male circumcision is accepted by the British Medical Association, although it acknowledges in its Guidance for Doctors on the subject that male circumcision has never been the subject of a case in English law, but this assumption of lawfulness has never been challenged
.
Female circumcision is prohibited by the Prohibition of Female Circumcision Act 1985. Section 1(1) of this Act makes it a criminal offence, punishable by fine or imprisonment—
(a) to excise, infibulate or otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris of another person; or (b) to aid, abet, counsel or procure the performance by another person of any of those acts on that other person's own body.
There is a saving in s 2(1) for the performance of surgery by a registered medical practitioner which is necessary for the patient's physical or mental health, and for surgery performed during labour or after birth. However, by s 2(2):
In determining for the purposes of this section whether an operation is necessary for the mental health of a person, no account shall be taken of the effect on that person of any belief on the part of that or any other person that the operation isrequired as a matter of custom or ritual.
Infibulation is the fastening of the sexual organs with a fibula, or clamp. The distinction drawn in the medical literature to which I was referred between male and female circumcision is that whilst both involve the alteration or removal of tissue where there is no disease present, the latter is undoubtedly a mutilation which is designed to control female sexuality and which, when performed without anaesthetic, with crude cutting instruments and with few or no precautions against infection is life-threatening, as well as resulting in a total loss of stimulation. The medical profession is thus agreed on its detrimental effects onphysical, sexual and mental health.
There is also, however, a body of medical opinion which regards both male and female circumcision as invasive procedures involving unnecessary mutilation of the genitals, and which calls for male circumcision to be criminalised, except in the rare cases where it is medically called for.
The Law Commission also draws a distinction between male circumcision and other assaults on the bodies of children by their parents. Thus inR v Adesanya, reported only as a news item in the Times for 16 and 17 July 1994, a Nigerian member of the Yoruba people, resident in Tottenham, North London, was convicted at the Central Criminal Court of assault occasioning actual bodily harm for having made incisions with a razor in the cheeks of her two sons, aged 14 and 9 respectively, in accordance with the ritualistic customs of her tribe.
The report indicates that both children were willing parties. However, the trial judge, Judge King-Hamilton QC ruled that the existence of tribal custom was no defence, although the defendant received an unconditional discharge.
The Law Commission cites four reasons to justify this approach. They are:(1) the reason given by the judge namely the potential for serious injury – in that the slightest movement of the child's head might have led to injury to his eye;(2) the reason that impelled Parliament to enact the Tattooing of Minors Act 1969, namely that a minor who consents to such an act at the time may come to regret it in later adult life;(3) increasing inobservance of the ritual in Nigeria itself made its tolerance as a special case in England less defensible; and (4) the argument that the essence of the criminal law is that it imposes a minimum standard of behaviour upon all who live in England and Wales. Thus if there are to be any special exemptions for foreigners these must be decided upon by the legislature and not by the courts.
A case can be made for describing ritual male circumcision without any medical need for it as an assault on the bodily integrity of the child; indeed, that is the case which is made in much of the medical literature to which I was referred. However, although the origins of ritual circumcision are unknown, the fact remains that there have, historically, been a number of medical justifications put forward for male circumcision, and there are certain specific, albeit rare, medical conditions for which it is currently deemed necessary. Whilst the medical benefits of ritual male circumcision are now controversial, the fact remains that not only is it insisted upon by Muslims and Jews, but that male circumcision itself has, over the years, become an accepted practice amongst a significant number of parents in England.
In my judgment, therefore, where two parents, jointly exercising parental responsibility for a male child cause him to be ritually circumcised in accordance with the tenets of their religion, that exercise of parental responsibility is lawful.
MEDICAL ATTITUDES TO RITUAL CIRCUMCISION
Through the good offices of Dr S, I was provided with a number of articles from medical journals. Through the good offices of the Official Solicitor, I was also given the Guidance for doctors who are asked to circumcise male children published by the General Medical Council (GMC) and the guidance on the same subject published by the British Medical Association (BMA). The Chairman of the Medical Ethics Committee of the BMA also kindly made available an up-to-date draft of a discussion paper on male infant circumcision. The latter was made available on the basis that, since it was a draft, it did not representformal BMA policy.
The GMC Guidance for Doctors who are asked to circumcise male children summarises the debate about circumcision in these terms:
Circumcision raises difficult questions about the rights and freedoms of individuals. Many people maintain that individuals have a right to practice their religion unhindered. Others feel that it is unequivocally wrong to undertake a surgical procedure, with its attendant risks, on an infant who is unable to consent. These are not solely medical matters and we do not think they can be resolved by the medical profession alone. They are matters for society as a whole to decide.
In my judgment, following Re R (a minor)(residence: religion)[1993] 2 FCR 525 it is no part of the court's function to take a stance anywhere along this spectrum of opinion. English law, as I understand it to be, is as follows: (1) that as an exercise of joint parental responsibility, male ritual circumcision is lawful; however (2) where there is a disagreement between those who have parental responsibility for the child as to whether or not he should be circumcised, the issue is one within the court's jurisdiction under s 8 of the 1989 Act; and (3) the court must decide the question by the application of s 1 of the 1989 Act to the facts of the individual case.
The BMA's Guidance for Doctors on the ritual circumcision of male infants take a similar stance. The BMA does not have a policy on the ethics of male circumcision for religious or cultural purposes. It is, however, noteworthy that the BMA strongly recommends that either the written consent of both parents or of the person with parental responsibility be obtained for circumcision; parents must be aware of the nature and implications of the procedure, and the risks involved. The guidance also contains this paragraph:
Doctors should be aware of potential difficulties if both parents do not follow the same cultural tradition. A case raised with the BMA concerned a GP who had circumcised, without any enquiry, a baby unknown to him but whose parents were, in fact, unmarried and estranged. The child's father had taken the baby without the mother's permission, fully aware that the procedure would be completely contrary to her wishes and that he had no legal right to consent. The mother made a formal complaint about the doctor concerned.
The BMA's Guidance is summarised thus:
A similar stance is taken by the GMC in its guidance for doctors.
Since the father of a child who is not married to the child's mother only has parental responsibility by agreement or by order of a court, I take the BMA and the GMC Guidance to mean, in practice, that it is undesirable to circumcise a male infant without the consent of his mother.
In my judgment, it is plainly relevant to my decision that mainstream medical opinion (as represented by the BMA and GMC guidelines), requires both paternal and maternal consent and in particular requires maternal consent when the father of the child does not have parental responsibility. That fact cannot, however, be determinative of the issue. If parents disagree about the circumcision of their son, and the issue has to be decided by the court, the court plainly has the jurisdiction, in an appropriate case, to override a maternal veto, and if it does so, it would plainly be proper for a doctor to carry out the procedure.
However, a maternal veto is plainly a very powerful consideration in the welfare equation, particularly where, as here, the parents are estranged, the mother does not share the same cultural and religious stance as the father, and she is the parent with residential care ofthe child.
Dr S's evidence confirmed that ritual circumcision remains a contentious issue from the medical perspective. There were, however, he said, three medical conditions for which circumcision was indicated. They are:
(1) True pathological phimosis. This is a condition in which the tightness of the prepuce (foreskin) prevents retraction of the foreskin over the glans. In this condition the tip of the penis becomes white and scarred. It is a rare condition, and the peak incidence is between the ages of 9 and 11.
(2) Balanoposthitis. This is a generalised inflammation of the penis and the foreskin, characterised by soreness, irritation and discharge. It is caused by an infection under the foreskin. If it is recurrent, surgery may be considered.
(3) Paraphimosis. This is a condition in which the edge of the foreskin is retracted behind the glans and becomes too tight to be pulled forward. It results in swelling of the tip of the penis. Reduction can be carried out by manipulation, but on occasions the restricting ring may need a small incision. Circumcision would be considered later if there was a recurrence.
There is no evidence to suggest that J suffers from any of these conditions, and accordingly no suggestion that circumcision is medically indicated for him. Dr S told me, however, that if J were to be circumcised this could be carried out as a day case. J would be likely to be unconscious for about 20 to 30 minutes. It would be a painful procedure, and pain relief would be provided by an anaesthetic block of the sensory nerve, with oral analgesia and application of topical local anaesthetic gel continuing for some 48 hours after surgery. Dr S said that J's mother or other carer would need to bathe the penis regularly, following detailed instructions from the surgical team.
So far as the risks of surgery are concerned, Dr S referred me to a paper by Williams and Kapila, two English paediatric surgeons, published in the British Journal of Surgery in 1993 entitled Complications of Circumcision. He also referred me to the literature on the possible psychological effects of circumcision, including the psychoanalytic view, expressed by Anna Freud, that for a child between the ages of four and five—
any surgical interference with the child's body may serve as a focal point for the activation, reactivation, grouping and rationalisation of the ideas of being attacked, overwhelmed and/or castrated.
Against this, as Dr S acknowledged, were the propositions that circumcision may encourage identification with the child's father, and that in societies where circumcision was linked to religion or tradition, an uncircumcised male may be an outcast.
Much of the medical literature to which Dr S referred is passionately argued, and it is clear that Dr S was correct when he described ritual circumcision as a very contentious, emotive and passionate issue worldwide
.
I do not think that it is either necessary or appropriate for me to attempt to review the medical literature identified by Dr S in detail, even if I was qualified to do so. I think it sufficient, for the purposes of this judgment, if I summarise the propositions which I think can properly be drawn from it.
(1) The medical benefits arising from circumcision (apart from the three conditions identified by Dr S for which surgery is indicated) are highly contentious. As the BMA Medical Ethics Committee draft text puts it:
The medical literature on the health implications of circumcision is contradictory, and often subject to claims of bias in research, perhaps due to theemotive nature of the subject.
(2) There is a powerful body of medical opinion which puts strongly in issue any suggestion that male circumcision prevents or reduces the risk of urinary tract infection, penile cancer, or sexually transmitted disease. Equally contentious is the suggestion that it reduces the incidence of cervical cancer in women. Doctors opposed to circumcision acknowledge that, properly performed, newborn circumcision prevents phimosis, paraphimosis and balanoposthitis; it argues, however, that these conditions are rare and either often treatable by less invasive techniques or resolve themselves.
(3) The procedure for a child of J's age carries small but identifiable physical and psychological risks. It is an invasive procedure, which therefore carries with it risks shared by all surgical interventions: pain, bleeding, infection, surgical mishap andcomplications of anaesthesia.
(4) There is evidence that tissue loss during circumcision removes or destroys the function of tissue which plays an important part in the overall sensory mechanism of the penis, and that there is a consequential loss of sexual sensory pleasure during sexual intercourse.
(5) The lack of consensus as to the medical harms and benefits of circumcision, and the social and religious factors influencing parents to have their sons circumcised, make this an issue for society, not the health professionals.
Dr S's view, as a paediatrician, was that circumcision should only be carried out if medically indicated. He recognised, however, that there may be religious and cultural reasons for circumcision, but pointed out that both the BMA and the GMC, in their advice to medical practitioners who are undertaking circumcision are very specific on the question of consent being obtained from both parents, and in particular in obtaining written consent from the parent who has parental responsibility. Dr S concluded his report with this paragraph:
Hence with regard to [J] there appear to be no medical indications for circumcision in this case, and due note should be made of his vulnerable age. The procedure is not pain free and there are potential risks both physical and psychological which may be small but which are nonetheless definite, and furthermore it must be emphasised that once carried out the prepuce cannot be restored.
On this latter point, I should add, in parenthesis, that amongst the documents shown to me was material from an organisation called Norm UK, the aims of which are to provide education about (1) the need to avoid circumcision and (inter alia)(2) about foreskin restoration. Within this material was an article on foreskin restoration which indicates that it is possible, although restoration cannot give back the erotogenic nerves amputated at circumcision. Equally, there was nothing in the medical evidence I read and heard which indicated that J could not be circumcised as an adult, although the possibility of finding a surgeon who would perform the operation in the absence of a medical need for it was not canvassed in evidence before me.
In the witness box, the father spoke with passion and obvious sincerity about the benefits to J of being circumcised. To the father it is a fundamental and essential part not merely of his religion but of his identity and J's identity.
The father simply could not understand the objections to circumcision. It was a means of demonstrating and reinforcing J's relationship with him: they had to be the same. J would be proud to be like his father. Uncircumcised, J would be different, and there would be a barrier between them.
The father told me that he had been circumcised in Turkey when he was six or seven. It had been done in hospital under a local anaesthetic. Most boys had to wear a form of skirt for a time afterwards: the father had not. He had been able to put on his jeans and walk out of the hospital. It had not been painful. It had also been a matter of celebration. There was a family party, and he was given presents. If presented to J sympathetically, there would be no difficulty. He should be told that the operation was being performed to make you like your daddy
. There would be no pain; alternatively, the pain would only last for a couple of days. It was no big deal
.
The father did not accept the risks, either physical or psychological, outlined in the medical evidence by Dr S and I have to say that, despite his obvious sincerity, there was an element of exaggeration in the father's account of his own circumcision (no doubt as a result of the passage of time), and in my judgment he minimises its painful aspects and underestimates the likely effect of the procedure on J.
The father acknowledged that he was not a practising Muslim. However, he insisted that he adhered to the essential tenets of his faith. He believed in Allah, and that Mohammed was the prophet of Allah. He did not eat pork. He was a Muslim, and being circumcised was fundamentalto being a Muslim.
By comparison with what I have to say was the mother's pallid and unconvincing statement of her religious beliefs, the father's passionate plea for J to be given his proper identity as a Muslim and for him to be thereby enabled to identify fully with his father was impressive. In my judgment, and with all due respect to the skilful presentation of his case by his legal team, the father was his own best advocate on this issue.
As developed by counsel, however, the case for the father brokedown into the following propositions.
(1) J is a Muslim according to the law of Islam. It is necessary for J to be circumcised under that law and it is the father's responsibility to ensure that he is circumcised before he reached the age of puberty.
(2) Circumcision is not inimical to Christian beliefs, whereas lack of circumcision is inimical to Muslim beliefs.
(3) The mother had known she was marrying a Muslim with a strong sense of identity and that whatever the degree of religious observance practised in the family, if the parties had a boy he would be circumcised.
(4) A distinction must be drawn between the religion of a child and the religion in which he is being brought up. The English authorities appear to concentrate purely on this issue of which religion should govern a child's upbringing: there appear to be no authorities which decide what the religion of a child actually is.
(5) J is a Muslim by birth and as a Muslim has a right to be circumcised in accordance with his religion: see art 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)(Rome, 4 November 1950; TS 71 (1953); Cmnd 8669), shortly to become part of English domestic law. The welfare checklist under s 1(3) of the 1989 Act should thus incorporate and assume the right of the child to practice his own religion – in this case by ensuring that he is circumcised.
(6) Ensuring that J is circumcised is a primary responsibility of the father in the practice of his religion and his right to do so is protected under the European Convention: this is highly relevant to the capacity of the father to meet J's needs under Children Act 1989, s 1(3)(f).
(7) There is a distinction between religious identity and the extent of religious practice. The father does not suggest that he is a particularly religious Muslim and the description secular Muslim
may be accurate. However, it is plain from the father's evidence that his Muslim identity is by no means dependent on the degree to which he puts his religion into practice. The fact that he is circumcised is fundamental to that identity, and his son's circumcision is fundamental to his.
For J, counsel for the Official Solicitor argues, in short, that J should not be circumcised because:(1) there is no evidence that he is now being brought up in the Muslim religion;(2) he is not likely to be brought up in the Muslim religion;(3) he is not likely to have such a degree of involvement with Muslims as would justify circumcising him for social reasons; and (4) for the reasons set out at (1) to (3) the small but definite medical and psychological risks involved in surgical circumcision outweigh the benefits attaching to the procedure.
The mother's argument on the issue of circumcision adopts that of the Official Solicitor and makes the following points:(1) it is clear from the report of Dr S that:(a) there is no medical indication for circumcision in J's case;(b) the procedure is attended by definite, albeit small physical risks and more significant psychological risks;(c) there is no consensus in the medical profession that the actual or potential benefits of circumcision exceed those risks; the consensus is rather to the contrary;(d) on the facts of the case there is an increased risk that J will suffer an adverse psychological reaction; and (2) the mother, who has day-to-day responsibility for J, is adamantly opposed to circumcision.
It is, I think, relevant that the question of J's circumcision arises at a time of considerable tension between the parties, and when the mother (albeit, as I have found, without justification) appears genuinely anxious about the father's contact and, in particular, about the possibility that he may remove J permanently from the jurisdiction. These tensions have undoubtedly had a knock-on effect on J.
One particular incident gives a stark example of the difficult position in which J is placed. In a statement made on 18 November 1998 the mother sought to justify her unilateral termination of contact by expressing concern at what the father had apparently been saying to J oncontact visits. She said, in particular:
He told me that his father talked to him about having his
willy
cut and asked if he was still going to be able to go to the toilet. I had to explain to him that it would not stop him from weeing. This seemed to become more of an obsession to [J] as time went on and I could only presume that [the father] was constantly talking to him about this, which I did not think was very fair. It upset [J]... [J] was very concerned at the effect of having the operation would have on him and I had to try to calm him down. To do so, I have obviously had to play down the effect of any operation upon him and I did not like not being able to be entirely honest with him.
The father's statement in answer reads as follows:
In relation to me speaking with [J] in respect of circumcision, I admit that I did this. [J] and I had taken a shower together and [J] always asks questions as he is very inquisitive. He asked me such things as what is that on my face, referring to the stubble of my beard and when he was younger I used to tell him that I bought it from the shop but now that he is older I can't tell him what is not true. He also asked me why I have got hair on my chest and why has he not and I explained to him that when he gets older he will have hair on his chest as well. After taking a shower,[J] noticed that my penis was different to his and he asked me why was mine this size and why was his small. I explained that was because I was older and then he asked why was mine different to his and then I explained to him that I had some of it taken away and he asked me whether he would have some of his taken away and whether it would make him like me and make him nicer. He asked me whether [R], who is [L], my girlfriend's son was going to have some of his removed and I said
yes
and he then said if [R] was going to have it done and daddy had it done then he would have it done. I had not intended to have a conversation with [J] in relation to circumcision but it came up because of [J] asking me questions. [J] is a little boy who always thinks his father is perfect and likes to be like his daddy, like every kid. When I saw [J] for the next contact visit, he was saying that the circumcision would hurt him and mummy had told him this. [J] had a chat with me and I explained that I thought his mother was only joking.
On 26 November 1998, during the father's renewed application for contact to J, I heard oral evidence from both parties on this particular issue, and had no hesitation in accepting the father's evidence about what had occurred. At the same time, despite the father asserting that he could not tell J a lie, it was untrue that R (who is not the father's son) was going to be circumcised, and the father and L have now broken up. This is, in my judgment, a relevant consideration. In Turkish society, a Muslim male child's peers will all be circumcised: in the circles in which J will grow up, he is likely to be in a small minority, and he will not have the reassurance that all his contemporaries have been through – or will go through – the same experience.
The incident I have described also makes it clear to me that the mother, as J's primary carer, would find it extremely difficult to present the question of circumcision to J in a positive light, and unlike ritual circumcision occurring in the context of a Muslim family, where the event would be one of celebration and fulfilment, J's circumcision would be likely to be surrounded by tension and stress, even though the mother was able to agree with the father's counsel in cross-examination that she would, of course, care for J after the operation, and would have no difficulty changing dressings.
In my judgment, the strained relationship between the parents, and the fact that as a circumcised child J would be unlike most of his peers, increases the risk that J will suffer adverse psychological effects from beingcircumcised.
How then, do I balance the various considerations to which I have referred? J's welfare is, of course, paramount. Is it in his interests to be circumcised?
The major benefit is that he will thereby be firmly identified with his father, and confirmed in the eyes of Islam as a Muslim. However, his circumcision would not be part of a family celebration, and he would not thereafter be brought up in a Muslim family environment.
The disadvantages are that despite the father's passionate defence of the procedure, J may be traumatised by it; he will, moreover, be living in the household of his mother, who disagrees with the procedure, and will find great difficulty in presenting it to J in a positive light.
The application for J to be circumcised is one to which s 1(3) of the Children Act applies. I propose to consider each of the relevant heads of that subsection in turn.
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
I have already related the parents' evidence about their respective conversations with J. In the event, I do not think J's wishes and feelings are ascertainable, or that he is of an age to have a proper understanding of what is involved. It would be inevitable, I think, for a child of J's age to be apprehensive about any form of surgery, but his attitude to it would largely depend upon how it was presented to him. I am satisfied that the mother, who is the residential parent, would find it very difficult to present the operation in a positive light, and there must accordingly be a possibility that the operation – from J's perspective would damage, rather than enhance the father's relationship with J. All in all, however, given J's age and level of understanding, I do not think I can place any weight on J's wishes and feelings.
(b) His physical, emotional and educational needs
J's physical needs are at present catered for by his mother, and to a much lesser extent by his father during contact visits. Circumcision is not required to meet any of his physical needs. His emotional needs are to maintain his relationship with both his parents. His relationship with his mother is secure: his relationship with his father is warm and caring. It needs to be strengthened and preserved.
The father perceives that his relationship with J may be damaged if J is not circumcised. Whilst I have no doubt that the father genuinely feels this to be the case, I cannot believe that in practice he would allow a refusal by the court to allow J to be circumcised to affect his day-to-day relationship with J.
J plainly has a need to be educated in the ways of the Turkish side of his inheritance, but, for the reasons I have already given that can be done by the fatherwithout any order of the court.
(c) The likely effect on J of any change in his circumstances
J's parents are at present unable to communicate with each other in a civilised way. Whilst I am of the view that responsibility for this unhappy state of affairs lies more with the mother than the father, there must be a real risk that circumcision, which would undoubtedly be a change in J's circumstances, will be seen by the mother and, through her, by J as an affront, and that the father will be perceived as having put J through unnecessary pain and suffering.
Thus, contrary to the father's perception, circumcision may in fact weaken rather than strengthen his relationship with J.
(d) His age, sex, background and any characteristics of his which the court considers relevant
J is five: he is thus at an age at which Muslim boys are often circumcised. His male sex is, of course, critically important. His background is a mixed Turkish/English parentage. He is a Muslim in the eyes of Islam, although he is being brought up in England by a notionally Christian mother in an effectively secular environment. His connections with Turkey and with the Turkish side of his inheritance will inevitably be limited. At the moment, he appears to be a normal, happy, boisterous five-year-old.
(e) Any harm which he has suffered or is at risk of suffering
J has already suffered harm through the separation of his parents, and continues to do so through their mutual hostility and inability to communicate. Circumcision carries with it the small but definite risks of both physical and psychological harm to which I have referred. Furthermore J, as a circumcised child, would undoubtedly be different from the majority of his peer group. The consequential possibility that he may be picked on or teased by his peers cannot be excluded asa risk.
(f) How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
His mother is caring competently for J as his residential parent. In my judgment, however, she lacks both the willingness and any real capacity to teach him about his Turkish background. She is also strongly opposed to his circumcision. His father, in my judgment, is capable of providing him with sufficient information about the Turkish side of his inheritance, and would be able, if I order J to be circumcised, to present the operation to J in a positive and sensitive way, even though I think that, because of his strong feelings and the passage of time, the father minimises the pain and discomfort likely to be suffered by J if the operation is performed.
(g) The range of powers available to the court under the Act in the proceedings in question
I have the power to make either a specific issue order or a prohibited steps under s 8 of the Act, and to attach conditions to either under s 11(7).
I have not found the differing factors in this case easy to balance. I have, however, come to the conclusion that I should not make a specific issue order requiring J to be circumcised: indeed, on the particular facts of this case, notably its foreign element and the fact that the father's family or a Turkish court might disapprove of my decision, I have come to the conclusion that it is in J's interests to make an order prohibiting the father from arranging for or permitting J to be circumcised either in England and Wales or elsewhere.
I make it clear that this is a conclusion which I have reached on the individual facts of this case. The factors which influence me are, in particular, the following.
(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 so 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 accordingly 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 life-style 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 the father chooses to allow the absence of circumcision 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 his 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.
I repeat that my decision in this case turns on its particular facts. I do not think it can be said that the court would not, in any circumstances, order a child to be circumcised. The example which was put in argument was that of a Jewish mother and an agnostic father with a number of sons, all of whom, by agreement, had been circumcised as infants in accordance with Jewish laws; the parents then have another son who is born after they have separated; the mother wishes him to be circumcised like his brothers; the father, for no good reason, refuses his agreement. In circumstances such as these, it seems to me that the court would be likely to grant the mother a specific issue order.
Reliance was placed by counsel for the father on art 9 of the European Convention on Human Rights, soon to be formally enacted into our domestic law by the implementation of the 
Human Rights Act 1998. That article reads:
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Reference was also made to art 24.3 of the United Nations Convention on the Rights of the Child (New York, 20 November 1989, TS 44 (1992); Cm 1976), which although ratified by the Government of the United Kingdom in 1991 has not been incorporated into English law. That article requires all ratifying states to—
take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children ...
The Human Rights Act 1998 is not yet, of course, in force in the United Kingdom. Despite this, is seems to me a useful backdrop against which to examine the application of the welfare principle in s 1 of the Children Act to an application to circumcise a male child.
Section 1 of the Human Rights Act 1998 provides that certain articles (which include art 9) are to have effect, and s 3(1) provides that primary legislation must be read and given effect in a way which is compatible with Convention rights. Under s 6, it is unlawful for a public authority (which includes a court) to act in a way which is incompatible with a Convention right.
Under art 9, the father says that his right to manifest his religion in practice includes the right to arrange for the circumcision of his son in accordance with the tenets of his religion. That seems to me plainly correct. It follows that any limitations on that freedom imposed by a court must be (1) as are prescribed by law; and (2) as are necessary in a democratic society for the protection of the rights and freedoms of others – in this case, the rights and freedoms of both the mother and J himself.
The relevant law in this context must be:(a) ss 2 and 3 of the 1989 Act, which give both the mother and the father parental responsibility and the right to act alone and without the other in meeting that responsibility (see s 2(7) of the Act);(b) s 8 of the Act, which empowers the court to authorise or restrict an exercise of parental responsibility by either parent; and (c) the welfare principle contained in s 1 of the Act.
Where, as here, two parents have identical rights under art 9 of the Convention (and also, for that matter, under art 8) I see no difficulty in imposing limitations on the right of one parent to manifest his religion if the exercise of that right (a) infringes or conflicts with the rights and freedoms of the other parent or the child and (b) is found by the court not to be in the best interests of the child.
I therefore see nothing inconsistent with the proper operation of arts 8 and 9 of the Convention in a decision of the court which, on the particular facts of this case and in the exercise of a judicial discretion, refuses to make a specific issue order permitting J's circumcision, alternatively prohibits the father from causing J to be circumcised.
Equally, given the balance which the court has to strike between the competing rights of the mother, the father, and the child, it does not seem to me that an order prohibiting circumcision in the circumstances of this case could properly be described as discriminatory under art 14.
The Official Solicitor, on behalf of J urged me to say that, notwithstanding the provisions of s 2(7) of the 1989 Act, where more than one person shares parental responsibility, no one holder of parental responsibility should be able to have an incompetent child circumcised against the wishes of any of the others. Thus where there is a disagreement between holders of parental responsibility about the circumcision of a male child, circumcision should not be carried out without the leave of the court.
Counsel for the mother urged me to be cautious about laying down such a broad principle which they submitted was unnecessary to the decision in the case and which could have potentially important social and physical consequences.
Section 2(7) of the Children Act reads:
Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.
The BMA Guidance for Doctors, which I have set out earlier, is, in my judgment, relevant on this point. I have in mind in particular the fact that the BMA strongly recommends that the written consent of both parents is obtained. It also emphasises the need for doctors to be aware of potential difficulties if both parents do not follow the same cultural tradition.
In my judgment, the argument put forward by the Official Solicitor on this point is sound. Circumcision is an irrevocable step in a child's life. Section 13(1) of the 1989 Act provides that where a residence order is in force, no person may cause a child to be known by a new surname or remove that child from the jurisdiction without the leave of the court. There is no equivalent statutory prohibition against circumcision without the agreement of all those with parentalresponsibility.
Changes of surname, which require applications to the court in cases of disagreement are reversible: circumcision is not. In my judgment, therefore, where there is a dispute between parents or other persons having parental responsibility for a child over the child's circumcision, that dispute should be referred to the court for resolution, if need be as a matter of urgency. I also agree with the Official Solicitor that this proposition should also apply to any local authority which has parental responsibility for a child under a care order: see the 1989 Act, s 33(6).
For all these reasons, there will be no order on the father's application for J to be brought up as a Muslim and there will be a prohibited steps order preventing the father from arranging or permitting J to be circumcised without the leave of the High Court. I propose to invite counsel to agree the precise terms of the order.
Order accordingly. Leave to appeal granted.
Jane Maynard
© Reed Elsevier (UK) Limited 2000
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