Religious circumcision in the courts again: P

Background

in P (Circumcision: Child in Care) [2021] EWHC 1616 (Fam), a boy aged 21 months, P, was subject to an interim care order in favour of X Local Authority. P’s mother, supported by P’s father, who were Muslim, sought the court’s authorisation to have P circumcised [2 & 3]. P had lived all his life with relatives, Mr and Mrs R, who were likely soon to become his permanent carers under a Special Guardianship Order [1]: they were not Muslims but had agreed that they would care for P throughout his life and would respect his Muslim heritage [7]. P also had an older brother and an older half-brother who lived with other relatives (not Mr and Mrs R), also under a Special Guardianship Order [5].

The Local Authority and the Children’s Guardian both contested the mother’s application, arguing that the decision should be deferred until P was older [3]. P’s parents contended that if he were not circumcised now he might not choose it later  because of the likely pain and discomfort [14] and contended that Article 9 ECHR was engaged [26]. The Local Authority and the Children’s Guardian believed that it was in P’s best interests for him to make his own decision when he was old enough to do so [17]; nor did Mr and Mrs R support the mother’s application [21]. Neither of P’s older siblings had been circumcised [32].

The judgment

Cobb J set out the following “guiding principles” at [27]:

  • That “Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms”;
  • that in reaching a decision about circumcision for a male child, his welfare was the paramount consideration;
  • that the welfare checklist in s.1(3) Children Act 1989 was engaged;
  • that the religious upbringing of a child in care was a matter of great importance, but its significance would vary from case to case depending on the strength of the religious beliefs and observance of the child’s parents;
  • that s.33(6)(a) Children Act 1989 obliged a local authority to ensure that a child in its care was not brought up in any different religious persuasion from that of his parents prior to the care order.
  • that the irreversibility of circumcision was “a matter of significance when looking at the short and longer term implications for the child”;
  • that the court had to review the medical risks and benefits of the procedure, particularly when it was non-therapeutic;
  • that the religious views and wishes of both parents carried “significant weight” and had to be given “serious heed”;
  • that the court was not bound to give effect to the parents’ wishes about religious upbringing “when satisfied that the child’s welfare requires otherwise, and in giving effect to them the court has power to do so in such a manner as it may consider to be best in the child’s interests”;
  • that the views of the child’s primary carers (if not his parents) also carried significant weight and that it was “a strong thing to impose a medically unnecessary surgical intervention on a residential carer/parent who is opposed to it”; and
  • that the particular environment in which the child was going to be raised was an important factor: “if the environment is one in which circumcision is not a part of family life, or in which it is not in conformity with the religion practised by his primary carer, this would be a relevant factor”.

Further, he noted that:

“where a disputed issue of non-therapeutic circumcision arises again in relation to a child in care, it is appropriate for the matter to be referred promptly to the court for resolution. In this instance, the mother has done so; it may be more appropriate for the Local Authority to take the initiative in such circumstances” [27: emphasis added].

The decision was “finely-balanced” [28] and required him to exercise “a pure welfare-based jurisdiction” [30]. He concluded that the decision should be deferred until P was able to choose for himself, “once he has the maturity and insight to appreciate the consequences and longer-term effects of the decision which he reaches” [36]. He made no order on the application [37].

Cite this article as: Frank Cranmer, "Religious circumcision in the courts again: P" in Law & Religion UK, 16 June 2021, https://lawandreligionuk.com/2021/06/16/religious-circumcision-in-the-courts-again-re-p/

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