Comment on: Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision)

SPECIFIC ISSUE ORDER

Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision)

(Court of Appeal): Dame Elizabeth Butler-Sloss P, Schiemann and Thorpe LJ, 25 November 1999) [2000] FLR (forthcoming)

The 5-year-old boy was being brought up by his non-practising Christian' mother with whom he lived and his non-practising Muslim' father with whom he had staying contact. The boy therefore had a mixed heritage and an essentially secular lifestyle with no settled religious faith. In the High Court Wall J refused the father's applications for specific issue orders under  s 8 of the  Children Act 1989 that the boy be brought up in the Muslim religion and that he be circumcised (see Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678). In summary, his Lordship found that circumcision would be more the exception than the rule in the circles in which the boy was likely to move; that he was not going to be brought up as a Muslim; that he was in the middle of a hostile contact battle between the parents; and that it is a strong thing to impose a medically unnecessary procedure on a residential parent opposed to it. The father appealed on the basis that the judge had confused the child's religion with the child's religious upbringing - that the child was born a Muslim and his religion was not terminated by the separation of his parents.

Held - dismissing the appeal -  s 1(7) of the  Children Act 1989 does not enable a parent to arrange circumcision without the consent of the other. As circumcision is irreversible and of considerable consequence it must join the exceptional categories where disagreement between holders of parental responsibility must be submitted to the court for determination.

COUNSEL (solicitors)

LINDSEY KUSHNER QC and MICHARD HUMPHREY (Metcalf Wright & Platt)
DAVID HARRIS QC and HELEN MATUK (Fiona Bruce & Co)
MICHAEL NICHOLLS (Official Solicitor)

COMMENT

In determining this appeal against a judgment described by Thorpes LJ as impregnable' the Court of Appeal roundly endorsed Wall J's approach (see the insightful comment by Professor Rebecca Bailey-Harris at (1999 Fam Law 543) on this important case) and addressed a significant point of principle in relation to the exercise of parental responsibility.  Section 2(7) of the  Children Act 1989 provides that:

Where more than one parent has parental responsibility for a child, each of them may act alone and without the other (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 in a matter affecting the child.'

Clearly, there are issues recognized by  s 13(1) of the Children's Act 1989, such as changing the child's surname or removing him from the jurisdiction, that requires the written consent of every person with parental responsibility. However, both Thorpe LJ and Dame Elizabeth Butler-Sloss P made clear that there is a small group of important decisions which should not be made by one parent, albeit with parental responsibility, in the absence of the agreement of the other. Circumcision is one of these. The sterilization of a child was cited by the President as a further example of a procedure requiring the specific approval of the court and which only will be carried out in the best interests of the child. It should be noted, however, that the sterilisation of a child requires the approval of the court even where the parents, as in Re HG (Specific Issue Order: Sterilisation) [1993] 1 FLR 587, are in agreement. The act of bringing the issue before the court was itself an exercise of parental responsibility, according to the High Court in this case. The same cannot be true for ritual circumcision. Where two parents agree to have their child circumcised the carrying out of the operation is a lawful exercised of parental responsibility in English law

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