A significant case, casting doubt
Law Reports 2015]
1 FLR 905]
Neutral Citation Number:  EWFC 3
Case No: LJ13C00295
IN THE FAMILY COURT
Sitting at LEEDS
Royal Courts of Justice
Date: 14 January 2015
SIR JAMES MUNBY
PRESIDENT OF THE FAMILY DIVISION
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In the matter of B and G (Children) (No 2)
LEEDS CITY COUNCIL
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(B and G by their children’s guardian Victoria Wilson)
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Mr John Hayes QC and Ms Joanne Astbury (instructed by the local authority) for the Applicant (local authority)
Mr John Myers and Ms Lucy Sowden (instructed by Lester Morrill) for the First Respondent (mother)
Mr Nkumbe Ekaney QC and Ms Pamela Warner (instructed by Crocketts) for the Second Respondent (father)
Ms Clare Garnham (instructed by Ramsdens) and Miss Vikki Horspool (of Ramsdens) for the children’ guardian
Hearing dates: 20-23, 27-30 October, 3-5, 7 November 2014
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SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION:
 These are care proceedings in relation to two children, B, a boy, born in July 2010 and G, a girl, born in July 2011 (these are not their real initials). In terms of their ethnic origin, both the father, F, and the mother, M, come from an African country which I shall refer to as country A, though the mother was born and brought up in a Scandinavian country which I shall refer to as country S (again, these are not the real initials). The family are Muslims. The proceedings were commenced in November 2013, triggered by M’s seeming abandonment of G in the street. B and G were placed in foster care the same month and have remained with the same foster carer throughout.
 I heard the case over twelve days at Leeds in October and November 2014. The local authority, Leeds City Council, was represented by Mr John Hayes QC and Ms Joanne Astbury, M by Mr John Myers and Ms Lucy Sowden, F by Mr Nkumbe Ekaney QC and Ms Pamela Warner, and B and G, through their children’s guardian, by Ms Clare Garnham and Miss Vikki Horspool. I am very grateful to all of them for the enormous assistance they provided me in an unusual and complex case.
 At the end of the hearing on 7 November 2014 I reserved judgment. On 11 November 2014 I handed down a very short judgment announcing my decision and my conclusions on various issues: Re B and G (Children)  EWFC 43. I said that I would give detailed reasons in due course.
 The most important issue in the proceedings is whether G has been subjected to female genital mutilation (FGM) and, if she has, what the implications of that are in relation to planning for her and her brother’s future.
 As I announced in my previous judgment (Re B and G, para 2(i)), I have concluded that the local authority is unable on the evidence to establish that G either has been or is at risk of being subjected to any form of FGM.
 This is, I believe, the first time such an issue has been canvassed in the context of care proceedings. Because of the importance of the point, this judgment is confined to the issue in relation to FGM. A separate judgment will deal with all the other issues in the case.
Female genital mutilation (FGM)
 Before proceeding further, however, it is necessary to be clear as to what is meant by FGM. I start with Eliminating Female genital mutilation, an interagency statement published by the World Health Organization (WHO) and others in 2008. Annex 2 sets out the following typology, dating from 2007:
“Type I: Partial or total removal of the clitoris and/or the prepuce (clitoridectomy). When it is important to distinguish between the major variations of Type I mutilation, the following subdivisions are proposed:
Type Ia, removal of the clitoral hood or prepuce only;
[This corresponds closely to the commonest form of male genital cutting ("circumcision")]
Type Ib, removal of the clitoris with the prepuce.
Type II: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision). When it is important to distinguish between the major variations that have been documented, the following subdivisions are proposed:
Type IIa, removal of the labia minora only;
Type IIb, partial or total removal of the clitoris and the labia minora;
Type IIc, partial or total removal of the clitoris, the labia minora and the labia majora.
Type III: Narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation).When it is important to distinguish between variations in infibulations, the following subdivisions are proposed:
Type IIIa: removal and apposition of the labia minora;
Type IIIb: removal and apposition of the labia majora.
Type IV: Unclassified: All other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping [practices less severe than most male genital cutting ('circumcision")] and cauterization.”
 The same classification is reflected in the WHO’s Fact Sheet N241, Female genital mutilation, published in February 2014:
“Female genital mutilation is classified into four major types.
1 Clitoridectomy: partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals) and, in very rare cases, only the prepuce (the fold of skin surrounding the clitoris).
2 Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (the labia are “the lips” that surround the vagina).
3 Infibulation: narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the inner, or outer, labia, with or without removal of the clitoris.
4Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.”
 For some purposes unicef uses a different classification. Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change, published by unicef in 2013, sets out the following typology (page 48):
“types of FGM/C are classified into four main categories:
1) cut, no flesh removed,
2) cut, some flesh removed,
3) sewn closed, and
4) type not determined/not sure/doesn’t know.
These categories do not fully match the WHO typology. Cut, no flesh removed describes a practice known as nicking or pricking, which currently is categorized as Type IV. Cut, some flesh removed corresponds to Type I (clitoridectomy) and Type II (excision) combined. And sewn closed corresponds to Type III, infibulation.”
 Next, it is necessary to consider the Female Genital Mutilation Act 2003. It suffices for present purposes to refer to section 1, which is in the following terms:
“(1) A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.
(2) But no offence is committed by an approved person who performs –
(a) a surgical operation on a girl which is necessary for her physical or mental health, or
(b) a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.
(3) The following are approved persons –
(a) in relation to an operation falling within subsection (2)(a), a registered medical practitioner,
(b) in relation to an operation falling within subsection (2)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.
(4) There is also no offence committed by a person who –
(a) performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and
(b) in relation to such an operation exercises functions corresponding to those of an approved person.
(5) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.”Section 6(1) provides that “Girl includes woman.”
 It will be seen that for the purposes of the criminal law what is prohibited is to “excise, infibulate or otherwise mutilate” the “whole or any part” of the “labia majora, labia minora or clitoris.” This brings within the ambit of the criminal law all forms of FGM of WHO Types I, II and III (including, it may be noted Type Ia). But WHO Type IV comes within the ambit of the criminal law only if it involves “mutilation”.
 The word “mutilation” is not further elaborated or defined in the statute, so I turn to the dictionary. The Oxford English Dictionary defines “mutilation” as meaning “the action of mutilating a person or animal; the severing or maiming of a limb or bodily organ”, “mutilate” being defined as meaning “To deprive (a person or animal) of the use of a limb or bodily organ, by dismemberment or otherwise; to cut off or destroy (a limb or organ); to wound severely, inflict violent or disfiguring injury on.”
...[Detailed consideration of the evidence of three expert witnesses, two of whom had examined G.]
 Accordingly I have concluded that the local authority is unable on the evidence to establish that G either has been or is at risk of being subjected to any form of FGM.
Issue (2): If G was subjected to FGM as alleged, did this amount to significant harm?
 In the light of finding on issue (1), this point falls away, but given its obvious importance and the fact that I have heard argument on it, it is appropriate that I deal with it.
 I do not want there to be any doubt. FGM is a criminal offence under the Female Genital Mutilation Act 2003. It is an abuse of human rights. It has no basis in any religion. I repeat what I first said as long ago as 2004 in Singh v Entry Clearance Officer, New Delhi  EWCA Civ 1075,  1 FLR 308, para 68: it is a “barbarous” practice which is “beyond the pale.” 56.In Fornah v Secretary of State for the Home Department  EWCA Civ 680,  2 FLR 1085, Auld LJ (para 1) described it as “an evil practice internationally condemned and in clear violation of Art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.” In the same case, Arden LJ (para 58) described it as “a repulsive practice ... deleterious to women’s health.” I entirely agree.
 In NS v MI  EWHC 1646 (Fam),  1 FLR 444. a forced marriage case, I said this (paras 3-4):
“ Forced marriages ... are utterly unacceptable. I repeat what I said in Re K, A Local Authority v N  EWHC 2956, (Fam) [20071 1 FLR 399, at para :
‘Forced marriage is a gross abuse of human rights. It is a form of domestic violence that dehumanises people by denying them their right to choose how to live their lives. It is an appalling practice. [I then quoted what I had said in Singh before continuing] No social or cultural imperative can extenuate and no pretended recourse to religious belief can possibly justify forced marriage.’
 Forced marriage is intolerable. It is an abomination. And, as I also said in Re K, at paras -, the court must bend all its powers to preventing it happening. The court must not hesitate to use every weapon in its protective arsenal if faced with what is, or appears to be, a case of forced marriage.”
In my judgment, every word that I there used in relation to forced marriage applies with equal force to FGM.
 Without wishing in any way to qualify what I have just said in relation to FGM in general, there is a particular issue in relation to FGM WHO Type IV which cannot be shirked. And that brings me to the topic of male circumcision.
 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.
 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.
 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.
 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)  2 FLR 678, on appeal Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision)  1 FLR 571, and Re S (Specific Issue Order: Religion: Circumcision)  EWHC 1282 (Fam),  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)  2 FLR 1005, 1015-1016 (T v S (Wardship)  EWHC 1608 (Fam),  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).
 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.
 I appreciate that, in Holmes J’s famous observation (Holmes, The Common Law, 1881, page 1):
“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”
Yet the curiosity remains. The explanation, it must be, is simply that in 2015 the law generally, and family law in particular, is still 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: cf the analysis in Re G (Education: Religious Upbringing)  EWCA Civ 1233,  1 FLR 677, paras 39-41. Certainly current judicial thinking seems to be that there is no equivalence between the two: see K v Secretary of State for the Home Department, Fornah v Secretary of State for the Home Department  UKHL 46,  1 AC 412, paras 31, 93, and SS (Malaysia) v Secretary of State for the Home Department  EWCA Civ 888,  Imm AR 170, paras 13-15.
 These are deep waters which I hesitate to enter. I am concerned with a narrower question, namely how one accommodates the law’s seemingly very different approaches to FGM and male circumcision within the provisions of section 31 of the Children Act 1989.
 Mr Hayes helpfully reminded me that the statutory test of ‘threshold’ in section 31 has two components, and this, as it seems to me, provides the key to what might otherwise be thought rather puzzling. Section 31(2) provides as follows:
“A court may only make a care order or supervision order if it is satisfied –
(a)that the child concerned is suffering, or is likely to suffer, significant harm; and
(b)that the harm, or likelihood of harm, is attributable to –
(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii)the child’s being beyond parental control.”
I can ignore section 31(2)(b)(ii). So before the State can intervene, the local authority has to prove two things: “significant harm” attributable to parental care which is not what it would be “reasonable to expect” of a parent.
 Mr Hayes submits, by reference in particular to what Baroness Hale of Richmond said in Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075, para 185, that any form of FGM, including FGM WHO Type IV, amounts to “significant harm”. To use Lady Hale’s language, no form of FGM can, he says, be characterised as trivial or unimportant, having regard not merely to its purely physical characteristics but also to its associated trauma and potential emotional or psychological consequences. Mr Hayes also makes an exceedingly important practical point. Unless FGM in all its forms is treated as constituting significant harm, local authorities and other agencies, and indeed family courts, may be very significantly hampered in their ability to protect vulnerable children, given that “significant harm” is the jurisdictional hurdle that has to be overcome not merely under section 31(2) but also under section 100(4)(b) of the Children Act 1989.
 I agree with Mr Hayes. In my judgment, any form of FGM constitutes “significant harm” within the meaning of sections 31 and 100. What then of male circumcision?
 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)  2 FLR 678, 693, on appeal Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision)  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.
 I should add that my conclusions in relation to whether FGM, including FGM Type IV, constitutes “significant harm” for the purposes of family law, is quite separate from the question of whether particular examples of FGM Type IV involve the commission of criminal offences under the Female Genital Mutilation Act 2003. As I have already pointed out, FGM Type IV comes within the ambit of the criminal law only if it involves “mutilation”. The question of whether a particular case of FGM Type IV – for example, the case as presented here by the local authority in relation to G – involves mutilation is, in my judgment, not a matter for determination by the family court, and certainly not a matter I need to determine in the present case. It is a matter properly for determination by a criminal court as and when the point arises for decision in a particular case.
 Moving on to the second limb of the statutory test, Mr Hayes submits that in assessing whether the infliction of any form of FGM can ever be an aspect of “reasonable” parenting, it is vital to bear in mind that FGM involves physical harm which, it is common ground, has (except in the very narrow circumstances defined in section 1(2)(a) of the Female Genital Mutilation Act 2003, not relevant in a case such as this) no medical justification and confers no health benefits. The fact that it may be a “cultural” practice does not make FGM reasonable; indeed, the proposition is specifically negatived by section 1(5) of the 2003 Act. And, as I have already pointed out, FGM has no religious justification. So, he submits, it can never be reasonable parenting to inflict any form of FGM on a child. I agree.
 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.
[Not so: FGC in Islam is justified by a hadith including words attributed to the Prophet Mohammed. And MGC is much more often peformed for non-religious reasons, such as mere parental whim. It is unclear how any justification for MGC by religion can also justify it being done for non-religious reasons.]
FGM has no medical justification and confers no health benefits [that we know of. It would be deemed unethical to do the experiments necessary to find out. It is, however, seen by some as providing hygienic or prophylactic benefits (although opinions are divided), thereby extinguishing the point of difference Justice Munby is about to make]; 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 [by whom?] as permitting male circumcision.
 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.
[Sir James has in fact exposed, not a clear distinction, but a sexist and paradoxical differentiation between two equally harmful and unethical practices, both of which ought to be illegal.]
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