Re L and B (CHILDREN)

Re L and B (CHILDREN)[2016] EWHC 849 (Fam) is a British Family Court (Exeter) case that was decided on 5 April 2016 by Mrs Justice Roberts. This case is significant because the Court required that circumcision be deferred until the boys are mature enough to decide for themselves if they wish to be circumcised. Their genital autonomy and right to physical integrity were protected.

The children in this case are two boys, aged 6 and 4. They have a 34-year-old English mother and a 36-year-old Algerian Muslim father. The parental relationship has broken down. This case addresses the arrangement for the care of the two boys.

Non-therapeutic ritual circumcision of the two boys is a major issue in this case, because the father wants to take the boys to Algeria to be circumcised in accordance with Islamic tradition. The mother, on the other hand, wants to defer any circumcision until the boys can decide for themselves.

The Court heard testimony on the medical and religious aspects of non-therapeutic child circumcision.

The Court considered these matters at length in a 37-page opinion and order. The Court provided a history of British circumcision jurisprudence, including the recent case of Re B and G (Children)(No 2) [2015] EWFC 3, [2015] 1 FLR 905 in which Sir James Munby ruled that male circumcision caused “significant harm”, and from which the Court quoted extensively.

The Court recognized that Algeria is not a state-party to the Hague Convention on Protection of Children (1993) and Co-operation in Respect of Intercountry Adoption (HCCH 1993 Adoption Convention). For this and other reasons the Court denied permission to travel outside of England and Wales.

After hearing evidence, the Court concluded that lack of circumcision would not prevent the boys from participating in Islamic-oriented activities with their father.

The mother’s position on circumcision was:

The mother confirmed that her current position in relation to the issue of circumcision was that the children should have the right in due course to make decisions about what happened to their own bodies at a time and age when they had sufficient understanding to appreciate all the implications. She did not believe the procedure was medically necessary. It was an irreversible and permanent step which was likely to cause them pain and it was not a decision which either she or their father should take now on their behalves. She recognised the strength of his religious convictions and was not seeking to place any obstacles in their practice of his faith whilst they spent time with him. They could still attend prayers with him and go to the mosque as often as he chose to take them, but a decision in relation to such a final and irreversible procedure was best deferred until the children reached a level of maturity to make the decision themselves. She did not intend to bring them up in the Islamic faith. Neither she nor her partner held any structured or formal religious beliefs and the children had no Muslim friends at their school.

The Court seems to have essentially adopted the mother’s position, which is entirely consistent with international human rights law. The Court refused to order circumcision and said:

It is a finely balanced decision but one in respect of which I have reached a clear conclusion. 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.

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 than to make the order which the father seeks. I am not dismissing his application on the basis that they must develop into adulthood as uncircumcised Muslim males. I am simply 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. Part of that consideration will be any increase in the risks of surgery by the time they have reached puberty. I do not regard the delay between now and that point in time significantly to increase those risks. The safest point in time to have carried out the procedure, according to Mr Muir, has long since passed.

Mrs. Justice Roberts, in making this order, placed the rights of the child above the rights of the two divorcing parents. She made no reference to international human rights law. Nevetheless, her conclusion is entirely consistent with the rights of the child under human rights law. Her order also is entirely in accord with Resolution 1952 of the Council of Europe.

Katherine Dunseath, with some pro bono instruction from James Chegwidden, appeared for the mother.

This British court reached a similar to conclusion to that of the German Court at Cologne in the celebrated German circumcision case of 2012.

External links

• (2016). British court: Circumcision choice should be left until children old enough to decide for themselves, http://www.circinfo.org, Circumcision Information Australia. Retrieved 29 December 2020.

• Earp B, Hendry J, Thomson M. Reason and paradox in medical and family law: Shaping children's bodies. Medical Law Review. 2017; DOI. Retrieved 30 November 2020.