Family Court Reports, Volume 1: Pages 307-314, 2000.
COURT OF APPEAL, CIVIL DIVISION
DAME ELIZABETH BUTLER-SLOSS P, SCHLIEMANN AND THORPE, LJ
24, 25 NOVEMBER 1999
Section 8 orders - Specific issue orders - Child living with non-practising Christian mother - Muslim father seeking order that son be circumcised - Whether judge correct to order circumcision not in child's best interests.
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 subsequently returned to England. Their son, J, was born in March 1994 but the parents separated when he was two and a half years old. Thereafter J was brought up by the mother in an essentially secular household and his only contact with Islam was through his father, who, like the mother, did not have any Muslim friends, or mix is Muslim circles. However, when J was five years old the father applied for specific issue order under Section 8 of the Children Act 1989 that J be circumcised. The father said that whilst pregnant the mother had agreed that any male child would be circumcised. The mother opposed the father's application, which was also opposed by the Official Solicitor acting as J's guardian ad litem. The judge held, inter alia, that although J was born a Muslim his upbringing was going to be essentially secular; that circumcision was an effectively irreversible surgical intervention which had no medical basis in J's case; that the mother who shared parental responsibility for J with the father but cared for him on a day-to-day basis, opposed circumcision; and that on the facts it was not in J's best interest to be circumcised. The father appealed with leave to the Court of Appeal contending, inter alia, that the judge confused the child's religion with the child's religious upbringing.
Held - (1) Section 2(7)¹ of the Children Act 1989 did not enable a parent to arrange male circumcision on a child without the consent of the other parent sharing parental responsibility. Furthermore, since the operation of circumcision was of considerable consequence and irreversible any disagreement between the holders of parental responsibility should be referred to the court for determination. Each case would depend on its particular facts.
(2) A child's perception of his or her religion generally depended on involvement in worship and teaching within his family from which developed the emotional, intellectual, psychological and spiritual sense of belonging to a religious faith. So for all practical purposes, the courts had been right to focus upon religious upbringing. There was no need, in the context of the present case to do more than be aware of the facts and then decide what weight to give them. The judge had not given inappropriate weight to any of the facts he had to consider and the appeal would be dismissed.
Appeal
The father appealed from the decision of Wall J (|1999| 2 FCR 345) whereby he refused the father's application for a specific issue order under s 8 of the Children Act 1989 that his five-year-old son be circumcised. The facts are set forth out in the judgement of ThorpeLJ.
Lindsey Kushner QC and Richard Humphrey (instructed by Metcalfe Wright & Piatr) for the father.
David Harris QC and Helen Matsk (instructed by Berry & Berry, Cocker, Smith & Co) for the mother.
Michael Nichols (instructed by the Official Solicitor) as guardian ad litem.
The father is 27. He is Turkish by birth and upbringing, and retains this 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 father 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. 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 member of the Muslim community. The father, likewise, does not appear to have Muslim friends or mix in Muslim circles.
… 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 religious faith.'…
The procedure is not pain free and there are potential risks both physical and psychological which may besmall but which are nonetheless definite…. (See [1999] 2 FCR 345 at 361.)
`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 wasimpressive.'
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 being 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.'
(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 movewill 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 weakenit.
(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.'
`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 effect the operation of any enactment which requires the consent of more than one person affecting the child.'
Appeal dismissed
Jane Maynard Barrister
1 Section 2 of the 1989 Act so far as is material, is set at p 313d-313e.post
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