A significant case, throwing weight behind a male's right
to decide for himself about his own genital cutting:
Re L & B

Neutral Citation Number: [2016] EWHC 849 (Fam)

Case No: FD12P01761

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE FAMILY COURT AT EXETER

Date: 05/04/2016

Before :

MRS JUSTICE ROBERTS

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Rupert Chapman (instructed by Fisher Meredith) for the applicant father

Katherine Dunseath (with assistance from Mr James Chegwidden) (instructed on a pro bono basis) for the respondent mother

Ellen Saunders of Porter Dodson instructed on behalf of MS, the children’s Guardian

Hearing dates: 2nd, 3rd, 4th and 5th November 2015

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Judgment

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mrs Justice Roberts :

1. These are applications by AB, the father of two young children, L and B, who are now respectively 6 and 4¾ years old. They relate to the ongoing arrangements for the children’s care and for specific issue orders. The respondent is the children’s mother. The children’s parents were never legally married to one another although they went through a ceremony of Islamic marriage in January 2009. They were in a relationship for approximately five years during the course of which their two sons were born. The relationship broke down in circumstances to which I shall come in July 2012. They have not lived together since. The father has not formed another relationship. The mother has a new partner who is the father of their child, a daughter, C, who is now 2 years old.

2. I will refer to the applicant and the respondent in this judgment as “the father” and “the mother”....

3. This is my judgment in relation to the father’s applications in relation to the following issues:-

3. whether it is in the children’s best interests to allow them to be circumcised in accordance with the father’s Muslim practice and religious beliefs in circumstances where the mother opposes that course until such time as the children have reached an age where they are competent to give consent to such a procedure.

...Background

4. The father is now 36 years old. He was born in Algeria and now has dual Algerian and British nationality. He is a devout Muslim and, despite what he acknowledges to be lapses in his religious observance in the past, is committed to the principle of ensuring that, as part of their dual heritage, his two sons grow up as Muslims observing all the tenets and practices of that religion. ...

5. The mother is now 34 years old. She had grown up in Devon before qualifying professionally at which point she moved to London. These parents met in 2006. A relationship between them was to develop and they began to cohabit at an address in North London. L was born in 2009 and B in 2011. Prior to L’s birth, the mother had indicated a willingness to convert to the Muslim faith. She received instruction at a central London mosque. The father’s case is that she willingly embraced his faith without any pressure or coercion on his part. She chose a new Muslim name ...

6. At the beginning of 2009, before their children were born, the parties went through an Islamic ceremony of marriage. ...

7. In 2011, following L’s birth they travelled with the two children to Algeria to visit the father’s parents. ...

8. During this initial trip, there was some discussion about the possibility of circumcising the boys. The father’s case is that the mother was wholly committed to the principle of their children being brought up in the Muslim faith and had agreed that, as Muslim boys, they should be circumcised as babies. When they took this trip to Algeria, L was not yet two years old and his younger brother was about three months old. In the father’s Muslim culture it is customary following the circumcision ceremony for the family to celebrate with friends. Because there was insufficient time to make these arrangements on that trip, nothing happened in relation to the children’s circumcision and the family returned to London. ...

27. At the July 2014 review hearing, the father raised for the first time the issue of circumcision. He also sought the return of his passport. Formal applications were issued in respect of these matters on 18 and 28 July 2014. Directions were given on 27 October 2014 to include the instruction of experts. On 12 December 2014 the children were joined as parties to the proceedings with MS appointed as their Guardian. Orders were made regulating the development of contact between the children and the father on an ongoing basis. At the beginning of February 2015, the applications were transferred to the High Court to be heard by a judge of the Family Division. There had by this stage been a delay in the instruction of the proposed experts because of funding issues. The matter had been listed for final hearing in July 2015 but all parties agreed that the two days which had been allocated for the case were insufficient. Instead, Baker J dealt with final directions for this hearing. His order of 6 July 2015 provided not only for the listing of this hearing before me but also for the reception of the evidence from the four expert witnesses from whom I have heard.

The respective positions of the parties as the case was opened

29. In summary, these were the positions of the parties as the case began.

The father’s position

32. In terms of the second limb of the relief which he seeks from the court, he asks for the court’s permission to allow the children to undergo the surgical procedure of circumcision under local or general anaesthetic notwithstanding the absence of the mother’s consent and the children’s inability to consent to such a procedure. He acknowledges that there is no medical reason for carrying out this procedure on either child but wishes to observe the strict requirements of his Muslim faith.
    
    ...
    

The mother’s position

35. In relation to circumcision, for a number of reasons to which I shall come shortly, she sees this as an unnecessary medical procedure which carries with it certain risks for the children both in the short and longer term. She does not say “never” but she does say “not now”. She asks me to allow the children themselves to decide whether or not they wish to undergo the procedure once they are competent to decide for themselves.

The Guardian

...

37. In respect of circumcision, the Guardian invited me to consider a number of different factors which have to be weighed in the balance before reaching conclusions about the children’s best interests. I shall come to these shortly once I have considered the law as I must apply it to the facts of this case as I find them to be.

39. Before moving on to analyse the evidence which I heard from the parties and the experts, I turn now to consider the law. There is broad consensus amongst the advocates in the case as to the legal landscape into which I am treading. Whilst the application regarding the arrangements for the division of the children’s time is familiar territory for any family judge, the aspects of the law raised by the specific issue applications require some consideration of the developing jurisprudence in relation to travel abroad to non-Convention countries and the circumstances in which circumcision, absent the consent of both parents, is likely to be approved by the court.

THE LAW

...

2. Circumcision

45. In relation to the specific issue of circumcision and its consequences for these children, my starting point is their welfare which is paramount. All the factors set out in s 1(3) of the 1989 Act must be considered again in the context of this discrete application. So, too, is s 1(5) of that Act which states that I should not make orders in respect of these children unless I consider that it would be better to do so in terms of their best interests than to make no order at all.

46. Specific guidance on the issue of circumcision was given by the Court of Appeal in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678. That was a decision by Wall J who was subsequently upheld on appeal by Thorpe LJ reported sub nom Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) at [2000] 1 FLR 571.

47. At page 682, Wall J recorded the expert evidence he had heard in relation to circumcision. He said:

“Circumcision in Islam

According to Dr Hinchcliffe, circumcision is not mentioned in the text of the Koran, but in the Sunna (the practice of the Prophet Mohammed) which is the second recognised source of law, it is strongly recommended, and sayings from the Prophet himself are cited in support of the practice. Thus although circumcision does not occupy a prominent place in the traditional texts of Islamic law, Muslims regard it as a necessity to fulfil their faith. That is certainly the father’s position.

In Islamic law, responsibility for ensuring that a male child is circumcised lies with the father, and Islam does not consider that it is a decision for the child to make himself. The decision when to circumcise is also made by the father, and the evidence is that Muslim practice varies from locality to locality. According to Dr Hinchcliffe, some jurists assert that the father must ensure that the child is circumcised before puberty, whilst others state more precisely that the child should be circumcised on the seventh day after birth. The father himself was circumcised in Turkey when he was 6 or 7.

Dr Hasan describes circumcision of a boy as:

‘… an obligatory duty which should preferably be done at a tender age which helps the wound to heal quickly. It is a father’s duty to carry it out as soon as possible. [If] he doesn’t do it, while the child is still a minor, he would be failing in this duty.’”

48. The child in Re J was 5 years old when the case was considered by Wall J. In refusing the application, the judge stressed that his conclusion was finely balanced and depended on the facts in that case as he had found them to be. He summarised the factors which had influenced his conclusion in the following way (at pages 699-700):

“(1) Although born a Muslim, it is clear to me that J is going to have an essentially secular upbringing in England. He is not going to mix in Muslim circles, and his main contact with Muslims and the Muslim ethos will be his contact with his father. J is therefore not going to grow up in an environment in which circumcision is a part of family life; or in which circumcision will be in conformity with the religion practised by his primary carer; or in which his peers have all been circumcised and for him not to be would render him either unusual or an outsider. To the contrary, circumcision in the circles in which J is likely to move will be the exception rather than the rule.

(2) Circumcision is an effectively irreversible surgical intervention which has no medical basis in J’s case. It is likely to be painful and carries with it small but definable physical and psychological risks. For it to be ordered there would have to be clear benefits to J which would demonstrate that circumcision was in his interests notwithstanding the risks. The principal benefits put forward are J’s identification as a Muslim and the strengthening of his bond with his father. The strength of each is substantially weakened, in my judgment, by the facts of J’s lifestyle and his likely upbringing. As I have already made clear, he is not going to be brought up as a Muslim child, and the strength of his bond with his father – viewed from his perspective rather than the father’s – is unlikely to be weakened if he is not circumcised unless his father chooses to allow the absence of circumcision to work to weaken it.

(3) J is in the middle of a hostile battle between his parents over contact. He is to that extent a vulnerable child. The operation and the period leading up to it are likely to be highly stressful for the mother, who would find it difficult to explain to J why it was being undertaken and would have grave difficulty presenting it to J in a positive light. Furthermore, J is of an age and understanding to feel pain and discomfort without at the same time being fully able to understand why the operation was being carried out.

(4) J’s mother, who not only shares parental responsibility for him with the father but cares for him on a day-to-day basis and is currently the most important person in his life, is opposed to his circumcision, and there is a rational basis for her opposition. It is a strong thing to impose a medically unnecessary surgical intervention on a residential parent who is opposed to it. In my judgment, this should only be done if the evidence shows that J’s welfare requires him to be circumcised. For the reasons I have given, I do not think that the evidence overall shows that it is in J’s interests to be circumcised.”

49. The Court of Appeal unanimously upheld Wall J’s decision for the reasons he gave and the point of principle that the judge’s conclusion that s 2(7) of the Children Act 1989² does not enable a parent to arrange circumcision without the consent of the other was correct.

50. Re J was considered by Baron J some six years later in the context of an application by a mother, following family breakdown, for permission for both children to become practising members of the Islamic faith and for her son to be circumcised. The father opposed the application. He was a follower of Hindu Jainism which forbade circumcision. The mother was concerned that, if the children were not raised as Muslims within the Islamic faith, she, and possibly her entire family, might be expelled from their religious community. The case was reported as Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236. One of the judge’s reasons for rejecting the mother’s application was explained by her Ladyship in this way (para 83(k)):

“Circumcision once done cannot be undone. It may have an effect on K if he wishes to practice Jainism when he grows up. He has been ambivalent about his religion and is not old enough to decide or understand the long-term implications. It is not in his best interests to be circumcised at present. The Muslim religion, whilst favouring circumcision at 10 years and below, does permit of an upper age-limit of puberty or later in conversion. By the date of puberty K would be Gillick competent and so he could make an informed decision.”

51. Most recently, the issue of circumcision was considered by Sir James Munby, President, in Re B and G (Children)(No 2) [2015] EWFC 3, [2015] 1 FLR 905. That case concerned two children (a girl of 3 and a boy of 4) who were born to Muslim parents. The President was dealing with the case in the context of a fact-finding hearing in care proceedings initiated by a local authority which was concerned that the girl might have been subjected to female genital mutilation (FGM) in one form or another. In his review of the law in the context of whether or not FGM amounted to ‘significant harm’ for the purposes of s 31 of the Children Act 1989, his Lordship dealt with circumcision as a parallel topic. Having observed that some forms of FGM might be regarded as much less invasive than male circumcision, he said this:

“[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 the non-Muslim Africa suggests, are 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, at 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’ (May 1997) Bulletin of Medical Ethics 128: 13-19, and Brian D Earp, ‘Female genital mutilation (FGM) and male circumcision: Should there be a separate ethical discourse’ (2014) Practical Ethics.”

52. Whilst accepting that these were ‘deep waters’ into which he hesitated to enter, the President nevertheless justified the distinction which the law made between the two in para 72 of his judgment in this way:

“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.”

The evidence in this case

1. The Experts

53. With the exception of Mr Gordon Muir, all the expert witnesses gave their oral evidence by means of a video link with the court.

2. Professor Abdel Haleem

58. Professor Haleem had prepared an expert religious assessment of the Islamic religious basis for circumcision of male children. He is a Professor of Islamic Studies at SOAS and was instructed on behalf of the Guardian.

59. In his report he confirms that the Qur’an does not mention circumcision explicitly. The Islamic basis for circumcision is the words of the Prophet Muhammad who described the procedure as “recommended practice”, or sunna. It is also an essential aspect of cleanliness in relation to the five daily prayers. His report refers to the fact that there are different legal opinions as to the age at which circumcision should be undertaken but there is a consensus that it must have happened by the time a male child reaches the age of 10 because that is the age at which they he is obliged to perform prayers (salãt). Further, circumcision is seen as part of a Muslim’s identity. Without undergoing the procedure a boy would not be considered to be a true Muslim. It is regarded as an essential part of Islamic religious tradition. In Professor Haleem’s view, a Muslim child’s relatives would find it shocking if a family member had not undergone circumcision. In this sense, both the religious and social implications for an uncircumcised Muslim child are important factors.

60. He was asked a number of questions about the timing of the procedure. He explained that circumcision must be performed by the time a Muslim boy “came of age”. That was generally assumed to be by the time he reached 10 years because this was the point at which he entered into a contractual relationship with God (Allah) and participated in daily prayers with adult Muslim males. He acknowledged that an uncircumcised boy would still be able to enter a mosque and pray since he was unlikely to be asked whether or not he was circumcised. However, he told me that a Muslim father is under a religious duty to ensure every male child born to him did undergo the procedure. He spoke about the social prejudice which a child would be likely to suffer if it became known that he had not been circumcised by the age of 10 and probably sooner. Given the ages of these children, he believed they should be circumcised as soon as possible and could see no reason to delay. A Muslim would be likely to say, “Why create potential difficulties for these children? What is the harm of having this done ? Why is there all this fuss?”. It seems to me that those rhetorical questions which he posed demonstrate the extent to which circumcision is seen as an ordinary incidence of being a Muslim (as Professor Haleem told me he was) but they do not address the social and family situation of a child where only one parent is a practising member of the Muslim faith.

61. He dealt with this point when he was asked questions on behalf of the Guardian. In a case where a family had mixed religious beliefs, as is becoming increasingly commonplace in society, he expressed the view that the issue of circumcision was likely to lose the vital importance it currently held within Muslim society. However, this did not derogate from the fundamental duty or obligation placed on a devout Muslim father to ensure that his sons were circumcised in accordance with his own religious beliefs.

3. Dr Naeem Ahmad

62. Dr Ahmad is a consultant paediatrician who works from a hospital in Nottinghamshire. He was instructed by the Guardian to prepare a report to assist the court in relation whether or not there was a medical basis for circumcising these children and, if so, the risks or possible implications of the procedure.

63. He referred to the wide debate in the medical world and the absence of any consensus in the profession as to whether the procedure carries sufficient health benefits to justify carrying it out on medical grounds alone. If undertaken by an experienced surgeon, he told me that the risks of complications are low.

64. As to the specific risks associated with circumcision, he set these out in his report as follows:-

1. pain;

2. risk of bleeding and infection;

3. irritation of the glans;

4. increased risk of meatitis (inflammation of the opening of the penis);

5. risk of injury to the penis.

These risks may increase as a child gets older, but the overall risk level is low.

65. As to the potential benefits of the procedure, these included the following:-

1. a decreased risk of urinary tract infections;

2. a reduced risk of sexually transmitted diseases;

3. protection against penile cancer;

4. a reduced risk of cervical cancer in female partners;

5. prevention of balanitis (inflammation of the glans);

6. prevention of phimosis (the inability to retract the foreskin);

7. general cleanliness.

66. When asked questions on behalf of the mother, Dr Ahmad told me that, in relation to the surgical risks, he himself had never undertaken a surgical circumcision. Most of his own surgical experience was gained in the early 1980s when he worked in India. His current experience as a consultant paediatrician lay in diagnosing and managing children with all forms of non-accidental injury.

4. Mr Gordon Muir

67. Mr Muir struck me as an impressive witness. He was instructed on behalf of the mother. He works as a consultant urologist at King’s College Hospital in central London, a position he has held for almost twenty years. He is a registered urology specialist at the General Medical Council. His written report was wholly compliant with the requirements of Part 25 of the Family Procedure Rules 2010 and confined to those matters which lay within his particular expertise. In particular, he set out his experience in this field in these terms:

“In my practice I routinely offer treatment of foreskin and penile disorders and have patients referred to me from all over the UK and also from overseas to this end. For men with foreskin problems I practise a number of treatments including non-surgical therapy, minimally invasive surgery, and circumcision. I carry out medically indicated circumcisions in children and adults. I operate on competent adults who wish circumcision for non-medical reasons and wish to proceed after informed consent.”

He told me during the course of his oral evidence that the large number of circumcisions he performs enables him, as a surgeon, to express his views without any bias one way or the other. [On the contrary, anyone who performs a large amount of male genital cutting exhibits bias towards the operation.]  The views he has expressed are based solely on the large body of empirical data with which he is familiar, his own research and his many years of professional experience in this field. That he has participated in a wide-ranging number of medical studies and has published widely in various medical journals is apparent to me from the extensive bibliography appended to his report.

68. For the purposes of compiling his report, Mr Muir had seen these children’s medical records and confirmed that there were no medical indications for performing circumcision on either. His report concludes with this paragraph:

“I would not be able to make a convincing argument for circumcision for these boys on medical grounds. Circumcision would remove the perhaps 2% lifetime risk of needing a circumcision for foreskin problems, and could reduce their risks of HIV or other STI’s were they as adults to engage in high risk sexual practice or unprotected sex in HIV endemic areas of sub-Saharan Africa (circumcision as a young adult prior to engaging in sexual activity would also be protective). Circumcision would have a significant risk of mild to moderate post-operative surgical complications such as bleeding, tiny risks of severe surgical complications such as major bleeding or glans damage, and small risks of cosmetic or functional problems needing to be addressed in adulthood. There is also the issue of patients who feel unhappy or disenfranchised as adults and while the risk may be small and as hard to qualify it is nonetheless present.”

69. His report dealt with the risks and benefits associated with non-therapeutic circumcision for these two children. In general, about five per cent of boys will suffer a significant complication after circumcision with about one in fifty needing emergency treatment for bleeding. He told me that by “significant” he meant anything over and above mild pain. At the extreme end of the spectrum (albeit rare) are major complications such as glans amputation, penile necrosis and death. Whilst deaths are very rare, they occur in Europe “every year”. He has personally treated five boys who have suffered partial or complete amputation of the glans with the Plastibell device, a form of circumcision which he would never recommend. Where they occur, these major complications require complex multiple plastic surgical operations with often unsatisfactory outcomes.

70. He referred to the lack of proper or adequate research into subsequent lack of sensation although he did not attach any particular significance to this risk or the psychological sequelae, or non-physical effects of circumcision. Whilst there were a number of websites and charities dedicated to men who feel they have been harmed by the practice of circumcision, these were informed to a large extent by a self-selecting group and thus little reliance could be placed statistically on their reportage of symptoms. [But doesn't their very existence point to a particular unsatisfactory outcome of male genital cutting that should be taken seriously? Neither Mr Muir nor Mrs Justice Roberts assign any value to the foreskin itself, or to having an intact penis.]

71. He was asked about some of the benefits which had been addressed by Dr Ahmed in his report. In relation to phimosis, his clinical experience was that almost 90% of boys who presented with this problem are cured by the application of steroid cream. In cases of balanoposthitis, circumcision can be indicated but less invasive surgical techniques such as frenuloplasty produce excellent results as reflected in one of his own research papers (the reference for which he provided). In terms of the more generally perceived health benefits associated with HIV protection and non-HIV sexually acquired infections, Dr Muir’s opinion was that there may be some small benefit in circumcision but the studies have not been compared with safe sex and condom use in at risk patients. As to prevention of urinary tract infections, he said that to prevent one urinary tract infection, over one hundred circumcisions would have to be performed which he regarded as an untenable proposition. Similarly, in terms of overall hygiene and cleanliness, he was of the opinion that, from a medical point of view, normal bodily hygiene was all that was required.

72. He was able to tell me about his personal data (risk factors which all surgeons are required to maintain). One in three hundred of his cases involving circumcision resulted in excessive bleeding at the site of the wound. There was a 1.5% chance of surgical revision in the following five year period and a 10% to 15% chance of a minor infection requiring treatment with antibiotics or a dressing. This data does not differ amongst patients’ respective age groups.

73. When cross-examined by Mr Chapman on behalf of the father, Mr Muir stressed that, in medical terms, the principle of competence was an important factor to be taken into account. Children should have competence before consenting to a procedure which was not medically indicated. In the absence of any discernible or direct medical benefit, a patient (be they child or adult) should always be competent to consent to the surgery. If children were non-competent for the purposes of giving their consent to surgery, he would view them as non-competent to consent to surgery for religious reasons.

74. In response to questions from the Guardian, Mr Muir confirmed that circumcision was a simple and safe operation when performed well but it nevertheless presented the risk of the complications he had outlined. In terms of the appropriate procedure were the court to authorise circumcision for these two boys, he told me that sleeve circumcision was the preferred, and safest, option. If they were old enough to consent to the procedure, they were usually old enough to consent to a local anaesthetic which was safer than a general anaesthetic. Here, the children would need a general anaesthetic if the surgery was to be undertaken now. They would be off school for about 48 hours and would thereafter need to avoid contact sports for seven to ten days.

75. Thus, in one sense, the two medical experts were approaching their task from different perspectives. Dr Ahmad does not have the surgical experience which Mr Muir has because he is a consultant paediatrician. He was certainly medically qualified to provide me with an overview of the possible risks and benefits but he did not have (and did not profess to have) the particular experience and expertise which Mr Muir had of this surgical procedure and its possible consequences. Dr Ahmad had not read Mr Muir’s report when he gave his own evidence by video link and deferred to his colleague at appropriate points in his evidence. Mr Muir had not only read Dr Ahmad’s report; he sat in court to listen to his oral evidence. It was clear that there were aspects of the medical evidence in respect of which there were marked disagreements of emphasis and substance between the two witnesses. On one view, it might be said that an experienced surgeon who specialises nationally in problems arising out of complications resulting from circumcision would be exposed to the reality of these risks as part and parcel of his daily professional life and thus more cautious in his approach to evaluating risk. However, on balance, I found Mr Muir’s evidence to be careful and helpful. He was not approaching his task from any religiously informed perspective and that was not his function albeit that it is an important aspect of the issues which need to be weighed and balanced in this case. I heard separately from other experts in that respect.

2. The parents

The father’s evidence

76. The father told me that, having heard the medical experts, he remained wholly committed to his application that these children should be circumcised. He was able to convey to me in very clear and direct terms the depth and strength of his religious beliefs despite what he described as “some bad things” he had done in the past. For himself and for his sons in due course, he said that circumcision went to the very core of his identity as a Muslim man: that was how essential it was in terms of way he perceived himself and his children. His own father, his uncle and his grandfather were all circumcised and it was a fundamental part of his personal and family identity. He did not know how he would be able to look his father in the eyes if his application is not granted. Both he and his family would feel devastated. In this respect circumcision had both a religious and a social importance which overrode any slight risk which the procedure carried. In terms of its religious importance, his view was that if the obligation had been created by Allah, “he knows it is in our best interests”.

77. He was clearly disappointed and irritated by the mother’s current stance on this issue. He felt that she had “moved the goal posts”. She was a Muslim when they went through a ceremony of marriage; they had discussed these issues at length and she was keen that the children should be circumcised in accordance with their (then) jointly held religious beliefs as early as possible. He told me that the children mixed with his own Muslim friends and their children during the time which they spent with him. He was teaching them Arabic and they attended sessions at the Islamic school at the local mosque. He described his experience of practising his religion in a small rural village as being very different from the time he was able to spend with a large group of extended friends when he visited London with the children. He was, nevertheless, doing all he could to ensure they were familiar with their religious heritage and Islamic beliefs and festivals.

78. He told me that there had been no formal enquiry by anyone at the mosque as to whether or not the children were circumcised although the Imam was aware that there was an issue because he had told him.

79. He wished the circumcision to be carried out as soon as possible but he was not concerned about the procedure used provided it was safe. He was happy for the surgery to be performed in England and he would postpone the ceremony until later when he could invite his family and friends in Algeria.

80. He was asked on behalf of the Guardian whether he thought there might be an impact on his emotional bond with the children were his application for their circumcision to be rejected until they were old enough to make their own decision. This was his reply:

“That is a very difficult question. All I can say is that I am 99% sure that these children will be circumcised during their childhood. I am not saying I am going to go against what the court orders. But I will do anything possible to ensure that they are circumcised.”

The mother’s evidence

90. 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.

91. She accepted that, following her earlier conversion to Islam, and at a time when the children were very young, she had agreed to circumcision. She said that if she had been asked before she met the father what her views about circumcision were, she would have been unable to provide an answer because the issue would not have entered her sphere of experience. She explained that when she met the father and fell in love, she wanted very much to please him. She was happy to listen to his thoughts and wanted to defer to him. In 2009, when L was a small baby, he had persuaded her that it was a simple procedure and one from which their son would very quickly heal. She had other Muslim friends at the time whose babies had been circumcised and she simply assumed that, as parents, they would do the same thing. The father had wanted to delay matters to a time when the children would be conscious of the procedure and recognise it as part of their Muslim faith. He had also wanted it done in Algeria in the midst of his family. The mother told me that it was only once she had found the strength to leave the controlling environment of their relationship that she was able to carry out her own research and form her independent views on the subject. She told me,

“I don’t want my children to be exposed to pain, risk or harm for the purposes of a culture of which I am not a part. I am not saying that they should not be circumcised but only at a time when they have made their own decision. It is not mine to make for them any more than it is the father’s. I was very surprised to discover the procedure carries far more risk than I had imagined having now had an opportunity to look into it.”

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94. When she was asked questions by Miss Saunders on behalf of the Guardian about the father’s ability to put the children’s interests above his own, she replied in this way:

“I absolutely believe that he holds his religious beliefs above the children’s wellbeing. I think his fundamental core religious beliefs and his need for them to be brought up as Muslims is more important to him than any objective view of the children’s best interests. He feels it is a reflection on the strength of his own religious convictions as a Muslim to achieve the children’s observance of that religion.”

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3. The Guardian

102. I heard from MS, the children’s Guardian, at the conclusion of the evidence. His position, having heard that evidence, is as follows:

2. In relation to the issue of circumcision, the Guardian remains neutral but has put forward a number of considerations from the children’s points of view. These I shall come on to consider shortly.

5. My Conclusions
   
   ...

3. Circumcision

128. This is a separate issue and I look at it afresh, albeit that the children’s welfare remains my paramount consideration. Once again, I bear in mind all the factors which emerge from the welfare checklist in s. 1(3) of the 1989 Act. In this context, I must also consider s. 1(5) of that Act which requires me to make no order unless I reach a clear conclusion that to make the orders which the father seeks is not only in their best interests but is better than making no orders at all.

129. I have already rehearsed at some length the expert evidence which I heard about the central importance of circumcision as an essential part of Muslim life as well as the medical evidence in relation to the nature of the procedure and the inherent risks it carries. I have to look at this issue from the perspective of the children whose interests outweigh any particular position adopted by either one of their parents. I acknowledge that in so doing I am treading into the “deep waters” identified by the President in Re B and G (Children)(No 2) but the polarised positions of the parties make that course inevitable. I bear in mind that the mother is not set against circumcision as an option for these children in the future when they are old enough to consent to the procedure themselves but she does not agree to it now in circumstances where, if it is to go ahead, the court will have to consent (or give permission) on their behalves.

130. I accept that this is a genuine application on the part of the father. His motives are driven by his deep-seated religious convictions and his perception of his obligations as a devout Muslim father. The Guardian acknowledged the fundamental importance of circumcision as an “obligation” for a Muslim father. To an extent, his application to this court is a partial discharge of that obligation or duty. In the face of opposition from the mother, he has pursued an entirely legitimate application, albeit that it is one which will be decided in the context of English law. In accordance with Article 8 of the European Convention on Human Rights, incorporated into our domestic legislation by the Human Rights Act 1998, the right to respect for his and the children’s family life includes his freedom to practice his religion. If and insofar as the expression of that religion imposes on him an obligation to ensure that his children are circumcised, the law will only prevent that course if it does not coincide with their best interests.

131. The following factors appear to me to be relevant to the balancing exercise which I have to perform in this context.

132. First, these were children born to parents who were both exercising their Muslim faith at the time of their birth (the father through the incidence of his birth into a Muslim family, his nationality and his upbringing; the mother by choice). She accepts that, at a time when their elder son was an infant, she accepted that he would be circumcised in accordance with the wishes of the father. For so long as they shared a common home with the children, the expectation was that these children would be brought up as Muslim children. Their parents socialised with other Muslim families and the mother’s evidence is that she was aware that it was common practice for their friends’ children to undergo circumcision.

133. Secondly, the children’s circumstances changed as a result of their parents’ separation and the disintegration of their shared family existence. L was then 2 years old and B had only recently celebrated his first birthday. Whilst there is some issue as to the precise point at which the mother abandoned her Muslim faith³, the children are now living in a home where they are receiving an essentially secular upbringing. That is likely to remain the case throughout their respective minorities. Their exposure to Muslim circles and socialising within those circles are likely to be confined to those periods of time which are spent in their father’s care.

134. Thirdly, since his separation from the children’s mother, he has ensured that, whilst in his care, they are fully involved in the Muslim faith, or as fully involved as it is appropriate for them to be at this age and stage of their lives. With his encouragement, they attend classes at the mosque where they pray with their father. They observe prayers appropriately at his home. They are receiving instruction in the Arabic language and can already recognise some words and phrases in religious texts. They will become aware, if they are not already, that their father has been circumcised. However, they will not grow up in an environment within their mother’s home where circumcision or the observance of daily prayers is part and parcel of family life in that household. They are already aware that their mother does not espouse the Muslim religion and that there is a difference between them and their younger half-sister in this regard. Whether or not with the encouragement of the father, I accept that there has been some spontaneous reference by the boys at their mother’s home to C being different from them in this respect.

135. Fourthly, the likelihood is that they will continue to spend time attending the mosque with their father as they develop into more independent young boys and, if they are not circumcised, there is a risk that they may feel alienated from that religion or from their peers who have been circumcised. It is not unreasonable in these circumstances to envisage that they may be the subject of either teasing or some gentle, if well-meaning, pressure. In this event, there is a risk of further litigation because the mother made it quite clear to me that, whilst she will not seek to influence the children one way or the other, she will not hesitate to bring the matter back to court if she perceives the father, or others at his behest, to be applying inappropriate pressure to the children.

136. In this context, I believe this risk is a real one. The father told me that he was as certain as he could be that these children would indeed be circumcised during their childhood. In my judgment, consciously or not, he would find it almost impossible not to convey to these children the strength of his own convictions that circumcision is not only the inevitable result of the discharge of his parental obligations, but a perfectly normal incidence of Muslim life and devotion to Allah. This lack of insight on the father’s part placing, as it will do, a burden on the shoulders of these children, is not a positive indicator in favour of circumcision but it is nonetheless a factor which I have to balance with all the others.

137. Thus, in the light of the factors I have mentioned above, circumcision would confirm the identity of these children as part of the Muslim community. It would eliminate the father’s anxieties and would remove the likelihood of the children being the subject of any further attempts to influence them one way or the other by either parent. The procedure is irreversible: once it is done it is done. The father would have no further reason to complain and the mother would no longer be in a position to object.

138. Those factors must be weighed in the balance against the fifth, and important factor, that, just as the father is passionate in his cause and the reasons for circumcision, the mother is resolutely opposed to it at this point in time. As the authorities make clear, it is a strong thing indeed to impose a medically unnecessary surgical procedure on a parent who has primary care of young children who opposes it. An inevitable consequence of granting the father’s application would be the emotional pressure on the children caused by the mother’s distress. However hard she tried to contain her emotions, I do not believe she would be able to shield the children entirely from her sense of distress on their behalves. The strength of her convictions was all too obvious from the witness box. There is a rational basis for the mother’s opposition and, if the court sanctions the procedure, it is something which she is going to have to live with on a daily basis as a constant reminder of the parental conflict which exists between her and the father.

139. I remind myself, too, that as a result of that parental conflict these children have been the subject of litigation for the majority of their young lives. That is not good for any child and it makes them vulnerable to adult tensions to which they should not be exposed. I believe that this mother would find it difficult to present the issue of circumcision to the children in a positive light and they, in turn, are unlikely to understand why they are being put in a position of pain and discomfort – if only for a short period of time – if there is no genuine medical need for the operation to be carried out.

140. So, too, as they spend time within their non-Muslim circle of friends and their local non-denominational school community, they may feel different and slightly isolated if they are the only ones to have been circumcised.

141. A further factor is that the expert evidence which I heard from Professor Haleem suggests that there is no overriding imperative to circumcise these children before the age of puberty. The father’s evidence was that, whilst his parents would find the whole situation very strange, he did not anticipate that they would discriminate in any way in respect of their grandchildren whether or not they were circumcised. There is already evidence that the local and London mosques which the children attend would continue to allow them to participate in religious community life regardless of their state of knowledge as to whether or not the children were circumcised.

142. 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.

143. 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. [Not so. Adult genital cutting is much safer than infant, because the penis has reached its full size.]

146. In all other respects, the current child arrangements order will remain in place with a suitable modification for the additional overnight stay in alternate weeks. The order will continue to provide for such further or additional contact as they parties may agree. I am not proposing to provide now for any further incremental changes to contact. I have confidence in these parents to continue the preliminary steps of the dialogue which they have started in this respect. The prohibited steps order will remain in place preventing the removal of either child from the jurisdiction of England and Wales. I shall dismiss the father’s application in respect of circumcision and I propose to include a declaratory recital in my order recording my view that it is not in the children’s best interests to undergo the procedure at this point in time and, in any event, until they are competent in terms of their age and maturity to make the decision for themselves.

Order accordingly