Re B and G (children) (No 2) EWFC 3

Re B and G (Children) (No 2) [2015] EWFC 3, [2015] is a British family law case which has attracted considerable legal commentary. The judge was Sir James Munby (born 27 July 1948), President of the Family Division and former Chairman of the Law Commission for England and Wales. Munby may have read the Brief to the Law Commission of England and Wales by Christopher P. Price entitled Male Circumcision: A Legal Affront, since he later cited the published version.

A girl of African-Muslim ancestry reportedly was abandoned on the streets of the city of Leeds, West Yorkshire. This resulted in the girl, designated as "G" and her brother, designated as "B" being taken into custody and placed with a foster parent.

This case was brought by the local authority due to there being concerns that G had received a female circumcision or female genital mutilation (FGM).

Judge Munby found it necessary to define female genital mutilation, which he did by adopting the definition of the World Health Organisation (WHO), which gave four types. In doing so he observed that male circumcision is much more harmful than Type IV FGM.

Male circumcision or MGM

With regard to MGM, Munby wrote:

[59] Circumcision of the male (from the Latin circumcidere to cut round) is the removal of some, or all, of the prepuce (foreskin), the retractable fold of skin that surrounds and covers the glans of the penis, so as to expose the glans. Circumcision involves the removal of a significant amount of tissue, creates an obvious alteration to the appearance of the genitals and leaves a more or less prominent scar around the circumference of the penis. Apart from the removal of the foreskin, and sometimes of the frenulum, the ligament that connects the foreskin to the glans, the genitals are left intact.

[60] It can readily be seen that although FGM of WHO Types I, II and III are all very much more invasive than male circumcision, at least some forms of Type IV, for example, pricking, piercing and incising, are on any view much less invasive than male circumcision.

[61] It is also important to recognise that comparatively few male circumcisions are performed for therapeutic reasons. Many are performed for religious reasons (as in Judaism and Islam). However, large numbers of circumcisions are performed for reasons which, as the particular prevalence of the practice in, for example, the English-speaking world and non-Muslim Africa suggests, are as much to do with social, societal, cultural, customary or conventional reasons as with anything else, and this notwithstanding the justifications sometimes put forward, that circumcision of the male is hygienic or has prophylactic benefits, for example, the belief that it reduces the incidence of penile cancer in the male, the incidence of cervical cancer in female partners and the incidence of HIV transmission.

[62] Now there is a very simple but important point to all this. There is nothing in the case-law to suggest that male circumcision is, of itself, such as to justify care proceedings: see Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, on appeal Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, and Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236. On the contrary, judges in the Family Division have on occasions made orders providing for non-therapeutic circumcision: see, for example, Re S (Change of Names: Cultural Factors) [2001] 2 FLR 1005, 1015-1016 (T v S (Wardship) [2011] EWHC 1608 (Fam), [2012] 1 FLR 230, was a case of a medically indicated circumcision). As against that, and as Mr Hayes helpfully points out, there are voices in the Academy who take a different view: see, for example, Christopher Price, Male Circumcision: An ethical and legal affront, Bulletin of Medical Ethics (May) 1997; 128, 13-19, and Brian D Earp, Female genital mutilation (FGM) and male circumcision: Should there be a separate ethical discourse, Practical Ethics (2014).

[63] In the present case the point arises in striking form. The family, as I have said are Muslims. I assume, therefore, that B either has been or will in due course be circumcised. Yet, entirely understandably, and, if I may say so, entirely appropriately, this is not a matter that has been raised before me. There is no suggestion, nor could there be, that B’s circumcision can or should give rise to care proceedings. So, given the nature of the local authority’s case on this point, we are in this curious situation. G’s FGM Type IV (had it been proved) would have been relied upon by the local authority, prior to its change of stance referred to above, as justifying the adoption of both children, even though on any objective view it might be thought that G would have subjected to a process much less invasive, no more traumatic (if, indeed, as traumatic) and with no greater long-term consequences, whether physical, emotional or psychological, than the process to which B has been or will be subjected.

Judge Mumby observed that the British Children Act 1989 requires that a finding of "significant harm" must be found before a court may intervene by issuing a care or supervision order.

Judge Mumby concluded with a finding that male circumcision does in fact constitute significant harm:

[69] Mr Hayes points to the recognition, both by Wall J, as he then was, and by the Court of Appeal in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, 693, on appeal Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, 573, 576, that male circumcision does involve harm, or the risk of harm. Given the comparison between what is involved in male circumcision and FGM WHO Type IV, to dispute that the more invasive procedure involves the significant harm involved in the less invasive procedure would seem almost irrational. In my judgment, if FGM Type IV amounts to significant harm, as in my judgment it does, then the same must be so of male circumcision. (Emphasis added.)

In reaching his conclusion, Judge Mumby cited two published papers:

• Price, Christopher P. Male Circumcision: An ethical and legal affront. Bulletin of Medical Ethics. May 1997; 128: 13-19. Retrieved 12 September 2020.

• Earp, Brian. Female genital mutilation (FGM) and male circumcision: Should there be a separate ethical discourse?. Practical Ethics (University of Oxford). 2014; DOI. Retrieved 12 September 2020.

Judge Munby then made a distinction between FGM and male circumcision:

[72] It is at this point in the analysis, as it seems to me, that the clear distinction between FGM and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. 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. There are, after all, at least two important distinctions between the two. FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision.

[73] I conclude therefore that although both involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish ‘threshold’ in accordance with section 31 of the Children Act 1989; male circumcision without more will not.

Female genital mutilation

Returning to the original complaint by the Leeds City Council, the Court found that G had not suffered female genital mutilation.

External links

• Fox, Marie, Thomson, Michael. Bodily Integrity, Embodiment and the Regulation of Parental Choice. Journal of Law and Society. 2017; 44(4): 501-31. Retrieved 9 September 2020.
• Möller, Kai. Male and Female Genital Cutting: Between the Best Interest of the Child and Genital Mutilation. Oxford Journal of Legal Studies. 26 June 2020; DOI. Retrieved 9 September 2020.
• (23 August 2020)."Aktueller Artikel im Oxford Journal of Legal Studies: Weibliche Genitalverstümmelung ist grundsätzlich falsch, und nicht nur, weil sie „anders“ sei als Praktiken an anderen Kindern", https://die-betroffenen.de, Mogis. Retrieved 9 September 2020.