In a landmark judgement, the High Court of England and Wales has ruled that children should not be circumcised until they are old enough to decide for themselves. The case arose when the Muslim father of the boy wanted him to be circumcised in accordance with his own religious beliefs, but the English mother disagreed. Top female Family Division judge Mrs Justice Roberts agreed with their mother’s wish to leave it for the boys, aged six and four, to make up their own minds when they are older whether they wish to have it done. The father, 36, was born in Algeria but is now separated from the 34-year-old mother. The couple met in 2006, lived together in a North London flat, and went through an Islamic ceremony of marriage in 2009 before the boys were born. In July 2012 the mother fled the flat with the boys following violent attacks on her by the father. The judge said the father came to England in 2001 on false documents, but had now been given British passport.
In reaching her decision, Justice Roberts said: "First and foremost, this is a once and for all, irreversible procedure. There is no guarantee that these boys will wish to continue to observe the Muslim faith with the devotion demonstrated by their father although that may very well be their choice. They are still very young and there is no way of anticipating at this stage how the different influences in their respective parental homes will shape and guide their development over the coming years. There are risks, albeit small, associated with the surgery regardless of the expertise with which the operation is performed.
There must be clear benefits which outweigh these risks which point towards circumcision at this point in time being in their best interests before I can sanction it as an appropriate course at this stage of their young lives."
She added: "Taking all these matters into account, my conclusion is that it would be better for the children that the court make no order at this stage in relation to circumcision. I am simply deferring that decision to the point where each of the boys themselves will make their individual choices”
Circumcision choice should be left until children are old enough to decide for themselves. The Telegraph, 19 April 2016
Jonathan Wells, Should religious circumcision be banned? The Telegraph, 19 April 2016
Analysis: Decision in circumcision case has wide implications for children's rights
The decision of Justice Roberts in the case of L & B in the High Court of England and Wales has important implications for child rights and protection of children against genital surgeries desired by their parents or other adults. In a landmark judgement, the court ruled that children should not be circumcised until they are old enough to decide for themselves. The case arose when the Muslim father of the boy wanted him to be circumcised in accordance with his own religious beliefs, but the English mother disagreed. Top female Family Division judge Mrs Justice Roberts agreed with their mother’s wish to leave it for the boys, aged six and four, to make up their own minds when they are older whether they wish to have it done. The father, 36, was born in Algeria but is now separated from the 34-year-old mother. The couple met in 2006, lived together in a North London flat, and went through an Islamic ceremony of marriage in 2009 before the boys were born. In July 2012 the mother fled the flat with the boys following violent attacks on her by the father. The judge said the father came to England in 2001 on false documents, but had now been given British passport.
The importance of the court’s judgement is that it confirms and extends earlier rulings that where parents disagree about whether a child should be circumcised, he or she should not be circumcised, but protected until he or she is old enough to make an informed decision. It further implies that for circumcision of a child t be lawful, both parents must give consent. This confirms the earlier ruling in the case of Re J that where the parents disagree, the best interests and possible future wishes of the child will need to be considered, which will normally dictate that the child should be free to decide for itself when older).
The case represents a perceptible change towards giving priority to the child’s rights and possible future wishes, thus abandoning the old legal view of children as little more than objects in the possession of their parents. More obviously than in the case of Re J, the Court was receptive to the real risk of harm resulting from circumcision, largely owing to the evidence presented by the mother’s counsel, who was well versed in the recent medical literature. While noting them, Justice Roberts did not give priority to the prophylactic health benefit arguments, but rather correctly evaluated the risks and harms involved as the key factor.
The vital thing is that the court accepted the primacy of the children’s right to make their own decisions about their lives. A key statement from the central argument of the judge (para 142-3): “First and foremost, [circumcision] is a once and for all, irreversible procedure. There is no guarantee that these boys will wish to continue to observe the Muslim faith ... although that may very well be their choice. They are still very young and there is no way of anticipating at this stage how the different influences in their respective parental homes will shape and guide their development over the coming years. ... I am ... deferring that decision to the point where each of the boys themselves will make their individual choices once they have the maturity and insight to appreciate the consequences and longer term effects of the decisions which they reach.”
These comments are essentially consistent with the principle of the child’s right to an open future.
Justice Roberts also referred to Lord Justice Munby’s comment from the Re B & G case last year: that when considering the legal questions around non-therapeutic circumcision, particularly the question of “significant harm” and comparisons with FGM, is to wade into “deep waters” - a suggestion that there is some wider concern about the tenability of this area of the law.
Perhaps the most useful element of the case will turn out to be the factual findings. After hearing at length from an expert of Islamic Studies, the judge was quite satisfied that nothing in Islam requires Muslim parents to circumcise their boys or that a boy’s circumcision is obligatory at any particular age. On the contrary, she found that that even if not uncircumcised they will still be able to participate fully in their father’s Muslim culture. Given that most circumcision cases now involve Islam more than any other faiths, this finding is an important one on which subsequent cases will probably rely.
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