What happens when parents disagree about whether or not their son should be circumcised? The issue came up on Thursday in SS (Malaysia) v Secretary of State for the Home Department  EWCA Civ 888 in the context of an application for asylum from a Malaysian Roman Catholic who feared that that her husband would have their six-year-old circumcised against her will if she and the boy were returned to Malaysia.
The appellant was brought up a Sikh but became a Roman Catholic. In December 2006 she married a fellow Roman Catholic and their child, C, was born in May 2006, baptised and brought up in the Church. However, she became concerned that her husband might convert to Islam and insist that C be brought up as a Muslim, so in May 2010 she came to the United Kingdom with C – without first telling her husband. By the end of 2010 he had converted to Islam.
In May 2011 she claimed asylum on the grounds that if she were returned to Malaysia she would be arrested and would be at risk of ill-treatment from her husband, who would insist that C be brought up as a Muslim. The Secretary of State rejected her claim on the grounds that her fears did not arise from any of the matters covered by the Refugee Convention and that she did not qualify for humanitarian protection. Her appeals to the First-tier Tribunal and to the Upper Tribunal were dismissed.
The judgment of the Court of Appeal
In the Court of Appeal she claimed, inter alia, that to deny her the opportunity of teaching her son about her own religion would breach her rights under Articles 8 (private and family life) and 9 (thought, conscience and religion) ECHR. Moreover, if C was returned to Malaysia his father would have him circumcised – against her wishes and against his best interests.
Delivering the judgment of the court (Moore-Bick, Rimer and Underhill LJJ), Moore-Bick LJ pointed out that in EM (Lebanon) v Secretary of State for the Home Department  UKHL 64, though he had described the effect of sharia as arbitrary and discriminatory by UK standards, Lord Hope had recognised that sharia was the product of a respected religious and cultural tradition and that
“7. … the Strasbourg court’s jurisprudence indicates that, in the absence of very exceptional circumstances, aliens cannot claim any entitlement under the Convention to remain here to escape from the discriminatory effects of the system of family law in their country of origin.”
Moreover, said Lord Hope:
“15. … The return of a woman who arrives here with her child simply to escape from the system of family law of her own country, however objectionable that system may seem in comparison with our own, will not violate article 8 read with article 14. Domestic violence and family breakdown occur in Muslim countries just as they do elsewhere. So the inevitable result under sharia law that the separated mother will lose custody of her child when he reaches the age of custodial transfer ought, in itself, to make no difference. On a purely pragmatic basis the contracting states cannot be expected to return aliens only to a country whose family law is compatible with the principle of non-discrimination assumed by the Convention.”
As to the religious upbringing of C, in the view of Moore-Bick LJ, since he was only six there was no reason to think that he had any independent religious faith even though he had been baptised a Roman Catholic:
“He will be able to make his own decisions about religious matters when he grows up. Removing him with his mother to Malaysia where he can be brought up by both parents in the country of his nationality would not interfere with any of his own Convention rights and is clearly in his best interests” [para. 12]”.
As to the probability that C would be circumcised if returned to Malaysia, his Lordship found it difficult to see how that would involve any infringement of his mother’s Convention rights [para 14]. Moreover:
“14 … Although invasive in nature and not commanding universal approval, it is regarded as an acceptable practice among communities of all kinds, provided it is carried out under appropriate conditions … It cannot be compared to other cultural or religious practices, such as female genital mutilation …
15. It is not necessary for the purposes of this appeal to decide whether circumcision may under certain circumstances involve an infringement of the child’s rights under … the Convention. The tribunal’s findings make it clear that … C would have the positive emotional support of his father and that he would be conforming to the broad expectations of the culture and society in which he would grow up. It is likely that that would be regarded as a significant factor by the courts of this country, if he were being brought up here … There is no reason to think that he would not continue to receive loving care and support from the appellant, despite her opposition to the procedure itself”.
It was obvious that, leaving aside any questions relating to C’s religious upbringing, it was in his best interests to be brought up by both parents [para 16]. In the opinion of Moore-Bick LJ his mother’s real complaint was that the Malaysian courts resolved disagreements about the religious upbringing of children differently from courts in the UK and in a way that she found “uncongenial”. To return her and her son to Malaysia would not amount to a flagrant denial of their Convention rights [para 17].
In Re J (Child’s Religious Upbringing and Circumcision)  1 Fam (CA) 307 Dame Elizabeth Butler-Sloss P (as she then was) declared that circumcision except for medical reasons
“… should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child” (para 32).
In SS (Malaysia) Baroness Butler-Sloss’s dictum was not referred to at all. Of course, this was not a family law matter: it was an asylum appeal and one could reasonably argue that the disagreement between SS and her husband about the upbringing of their child was not a sufficient basis for overturning the decision of the Upper Tribunal. Nevertheless, the omission is slightly surprising.
Finally, Howard Friedman at Religion Clause has noted the case under the heading “British appeals court upholds asylum denial; returning boy to be circumcised and raised as Muslim does not violate his rights”.
I am not entirely sure that that is what the Court of Appeal decided. On the contrary, as noted above Moore-Bick LJ said specifically at para 15 that it was not necessary for the purposes of the appeal to decide whether or not circumcising the boy might infringe his rights under Article 3 (inhuman or degrading treatment) or Article 8. Which is subtly different from Friedman’s take on the case.
With thanks to Adam Wagner who tweeted on this case – without which I should never have picked it up from the citation!
For a much more trenchant view than mine, see Rosalind English’s post at UKHRB: UK court ducks position on circumcision.
A few brief thoughts:
Family law is also not my “thing” but I thought the domestic courts were under a free-standing obligation to consider the best interests of the child and to place that consideration both front and centre of the decision-making process. (UNCRC Article 3.) If that is so, I doubt exporting the question back to Malaysia is an acceptable option. The person is here now, and should be dealt with according to the law here. That seems to go to the “structurally wrong” part of the argument in para 16.
Is Baroness Butler-Sloss’s holding authority for the proposition that where the parents cannot agree, circumcision should be postponed until such time as the child is mature enough to make its own decision?
I couldn’t help comparing the tone of the judgment with that of Judge John Platt in Re C. (Transcript: http://www.bailii.org/ew/cases/Misc/2012/15.html. L&R comment: https://www.lawandreligionuk.com/2012/08/04/a-right-to-be-baptised/)
Family law isn’t my thing either. In fact, I sometimes wonder whether I know anything about anything in detail at all: the trouble with doing “law & religion” is that one tends to acquire a ragbag collection of random bits of information in all sorts of areas of law without ever learning any particular area in depth. (Once upon a time I used to know quite a lot about the law of Parliament but I don’t find much use for that nowadays.)
I, too, thought that the domestic courts were under a free-standing obligation to consider the best interests of the child above all else; and I also thought that Baroness Butler-Sloss’s dictum in the Court of Appeal in Re J about joint consent was definitive. In her post on UKHRB, Rosalind English takes the robust view that
“… in a case where religion touches on a child’s interests, and the welfare of children is meant to be a paramount consideration, the courts are under a duty to square up to the issue, even if it is normally kept under wraps. If circumcision is one of the sharp demands placed on the child by religious faith, it should be scrutinised with the same rigour as any other practice which affects the interests of the child”.
I tried to keep my own post as neutral and objective as I could; but I rather agree with Rosalind English. And that is not to prejudge the outcome of such consideration by the court: the problem as she identifies it is that the Court of Appeal ducked the issue completely.
Finally got around to following up on this one. I entirely sympathise with your initial observation. I can only add to that that I often feel hamstrung by the almost total lack of retention of the specifics of anything that I read.
Anyway, I happened to be reading this blog http://asadakhan.wordpress.com/2013/07/25/a-rather-cruel-piece-of-mockery-part-1/ on the recent immigration case of MM v SSHD  EWHC 1900, and came across the case of ZH (Tanzania) v SSHD  UKSC 4, http://www.bailii.org/uk/cases/UKSC/2011/4.html, where Baroness Hale and Lord Kerr make significant statements about the weight to be attached to considerations of a child’s best interests:
Baroness Hale refers to Art 3 UNCRC and of course s1 Children Act 1989:
(1)”When a court determines any question with respect to –
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount consideration.”
before explaining the difference between cases where the child’s interests will be “the determining factor” (adoption, removal from parents, etc.) and the child’s interests will be “a primary (but not the sole) consideration” (all other matters.) 
Lord Kerr explains what “a primary … consideration” means in practice:
“primacy of importance must be accorded to his or her best interests. This is not … a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors…” 
But the key point seems to be s.1(1)(b), which is addressed to “the court[‘s]”, “when it … determines any question with respect to the upbringing of a child”. The question in this case was, of course, the mother’s immigration status, but it would be a narrow construal indeed that held that provision not to apply.
But that was not the reason the FTT, UT or CA cited for not confronting the question. The FTT decision seems to have rested on the judge’s finding that the child’s best interests would be served by being brought up by both parents . But in view of the acknowledgement that the Malaysian courts would likely uphold the father’s wishes, that finding sounds like question begging  and .
Furthermore, the finding that the Malaysian court would likely allow C to live with his mother until age 15 does not sit comfortably with the further acknowledgement that the mother would not be allowed to bring him up as a Christian  or that there were “no more than isolated examples of instances in which disputes over custody had been decided adversely to the mother” . A dispute over religious upbringing would surely be the paradigm case.
That is, of course, not to prejudge the outcome of a custody hearing per se, but to highlight the problem of removing anyone in similar circumstances to a jurisdiction where they would face a court that applies religious law.
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