No Order on Mother’s Circumcision Application

June 14, 2021

P’s mother, with the father’s support, applied to the Court for authorisation for P to be circumcised in accordance with the Muslim faith and wished the procedure to be undertaken forthwith and, in any event, before P’s second birthday.

The parents of 21 month old P were Muslim: his father by birth and heritage, and his mother by conversion to Islam some years ago.

P was currently subject to an interim care order in favour of a Local Authority and had lived all his life with extended maternal family members (Mr and Mrs R) who, it was accepted, were likely soon to become his permanent carers.

The Local Authority and Children’s Guardian contended that the decision about P’s circumcision should not be taken now, but should be deferred until later in P’s life: M v F, X Local Authority, P (By his Children’s Guardian) [2021] EWHC 1616 (Fam) Cobb J

P had an older brother and half-brother, both of whom lived with other maternal family relatives under a Special Guardianship Order.

Mr and Mrs R, who were not Muslim, had agreed that they would care for P throughout his life and agreed they would respect P’s Muslim heritage; they had acknowledged the parents’ preference for P to follow a broadly (but not strictly) halal diet.

Counsel on behalf of the mother argued that that circumcision of P represented an important component of his identity and cultural and religious heritage but accepted that male circumcision was recommended not obligatory in the Islamic faith, suggesting that “it is the usual practice”.

The mother, again supported by the father, was concerned that if P was not circumcised now, he would not choose to be circumcised later in his life as he would be deterred by the likely pain and discomfort which the procedure would then cause him.

The Local Authority’s position, echoed by the Children’s Guardian and summarised by the social worker, was: “The Local Authority defers to the medical advice in that unless it is medically necessary this is something that we would not support and believes that it is in P’s best interests to make his own decisions about this when he is old enough to do so and knowing all the facts about circumcision and the cultural reasons that underpin this.”

Observing that this was a finely balanced decision in which there were potent arguments on both sides of the debate, Cobb J said that as a matter of law no party held the “trump card” before the court.

Had there been no interim care order in place, the two parents acting in agreement, and exercising their shared parental responsibility, would have been able to provide consent for P’s circumcision for either therapeutic or non-therapeutic reasons.

But P was subject to an interim care order and the Local Authority currently had senior parental responsibility and presently opposed the procedure.

Section 33(3)(b)(4) Children Act 1989 did not give the Local Authority absolute authority to oppose the procedure but, equally, in opposing the procedure the Authority was not offending against the statutory proscription on causing P “to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made” (Section 33(6)); P remained a Muslim boy being raised broadly in accordance with Muslim tenets.

The issue for determination required the Court to exercise a pure welfare-based jurisdiction.

It was important that P retained, and was allowed to develop an interest in, the profound and rich tenets of the Islamic faith. The Court recognised and accepted that circumcision was an important and symbolic demonstration of his commitment to Islam, and that it was one of the five acts which were intended to fulfil the expectation of cleanliness (“fitrah”), but it was also of note that neither of P’s older brothers, with whom he spent time, and who were also placed in a home within the maternal family, had been circumcised.

Making no order on the application, the learned judge concluded that the decision to circumcise P should be deferred until he was able to make his own choice, once he had the maturity and insight to appreciate the consequences and longer-term effects of the decision he reached.

Authorities cited:

Re E (An Infant) [1963] 3 All ER 874; [1964] 1 WLR 51; (Wilberforce J).
J v C [1969] 1 All ER 788 at 801; [1970] AC 668; (HL);
Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678 (Wall J); and Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571 (same case on appeal);
Re S (Change of Names: Cultural Factors) [2001] 2 FLR 1005, at 1015-1016 (Wilson J);
T v S (Wardship) [2011] EWHC 1608 (Fam), [2012] 1 FLR 230 (Hedley J);
Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236 (Baron J);
Re A and D (Local Authority: Religious Upbringing) [2011] 1 FLR 615 (Baker J) (§74):
Re G (Children) [2012] EWCA Civ 123 (CA);
Re B and G (Children)(No 2) [2015] EWFC 3, [2015] 1 FLR 905 (Sir James Munby P);
Re L and B (Children) (Specific Issues: Temporary Leave to Remove from the Jurisdiction; Circumcision) [2016] EWHC 849 (Fam) (Roberts J).