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La circoncision rituelle

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Vincente Fortier

Chapitre 3. La voie de la régulation judiciaire : le compromis instable

Ritual male circumcision in the United Kingdom

Marie Fox, Matthew Gibson et Sylvie Langlaude

Texte intégral

I. General introduction

1This report assesses legal and regulatory responses to the practice of ritual male circumcision in the United Kingdom (UK). Within the UK, England and Wales is the primary focus for discussion: this jurisdiction represents the main legal site in which matters of ritual male circumcision have been considered. Comparatively, there is little, if any, legal guidance on the practice in Scotland and Northern Ireland, although brief reference is made to these separate jurisdictions, where relevant.

2The report contains four parts. Part II analyses the ways in which criminal law tackles ritual male circumcision. It argues that this arena is an inappropriate vehicle for legal control given the criminal law’s incoherence in framing consent as a defence to bodily harm. Moreover, criminal law is unable to address the range of parental and children’s rights issues that pervade the procedure. Next, Part III evaluates how family law engages with ritual male circumcision. It contends that this area offers a more conducive setting for discussion of the cultural and social factors relevant to parents and children in determining the legality of the practice. Subsequently, Part IV assesses the role of health law in providing effective guidance on ritual male circumcision. Finally, Part V concludes by arguing that if the procedure is to be legally permitted in specific situations, such guidance should be more detailed in constructing regulation that better protects the interests of parents, children and doctors.

II. Criminal law

A. Introduction

  • 1 The criminal law of England applies in Wales. Scotland and Northern Ireland have slightly different (...)
  • 2 Male circumcision involves the removal of the entire foreskin of the penis. “Ritual” implies that t (...)
  • 3 See below (n 4).

3The criminal courts in England and Wales1 have rarely adjudicated upon the practice of ritual male circumcision2. Indeed, judicial pronouncements on the custom have only arisen in cases concerning other harmful activity3. Ultimately, as established in Section B below, English criminal law does not challenge the practice of ritual male circumcision: it is not criminalised. This contrasts with the domestic criminal ban on ritual female circumcision. However, ritual male circumcision does raise some criminal law issues which current English jurisprudence neglects. Section C suggests that male circumcision satisfies the definition of grievous bodily harm whilst Section D assesses the extent to which an individual can consent to such harm (so as to defend the harm-doer from criminal liability). Section E concludes by arguing that criminal law is ultimately unsuited to regulation of ritual male circumcision: it argues for a greater role for family law and professional medical regulation in ritual male circumcision procedures.

B. Criminal law and circumcision

  • 4 R v. Brown [1994] 1 AC 212, 231 (Lord Templeman). This case did not concern ritual male circumcisio (...)
  • 5 Re J. (A Minor) (Prohibited Steps Order: Circumcision) [2000] 1 FLR 571 (CA) [20], [32] (Thorpe and (...)
  • 6 Re S. (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 [83] (Baron J). See also Gill (...)

4English criminal law considers that ritual male circumcision is lawful4. This applies to adults and children alike, although in relation to the latter the procedure is subject to the consent of a child’s parents. In the absence of parental agreement, the courts will proceed by acting in the best interests of the child5. Depending on the age of the child, his own views and consent may also be taken into account, even where this delays circumcision6.

  • 7 S 1. It is not an offence for a female to undertake FGM on herself: see FGM Legal Guidance, publish (...)
  • 8 S 2.
  • 9 S 3.
  • 10 S 4.

5This position contrasts with English criminal law’s prohibition on female circumcision – also known as female genital mutilation (FGM). The Female Genital Mutilation Act 2003 (the 2003 Act) forbids the practice of non-therapeutic FGM on UK nationals and permanent UK residents. It criminalises FGM7 and also creates accessorial liability in relation to assisting a female to commit FGM on herself8 or assisting FGM performed outside the UK by a non-UK national9. The 2003 Act also prohibits UK nationals from performing FGM outside the UK, even when undertaken in a country where the practice is legal10. There are various defences to the offences under sections 1 and 3 of the 2003 Act for registered medical practitioners, midwives and those training to become a registered mid-wife or medical practitioner. Under section 8 of the Accessories and Abettors Act 1861 it is also a crime for a UK national to assist an offence under sections 1 or 4 of the 2003 Act.

C. Bodily harm

  • 11 There is a large body of medico-legal research on the contested moral, religious, cultural and heal (...)
  • 12 FGM occurs where an individual removes (cuts) or otherwise mutilates the whole or any part of a gir (...)
  • 13 Such complications can arise during childbirth: ibid.

6Accordingly, there is a significant contrast in the way English criminal law treats ritual circumcision of males and females. This perhaps reflects differences in the ways the two practices are perceived, with the criminal law deferring to a medical view that the former is a safer and simpler procedure than the latter11. To this extent, FGM is conceptualised as a distinct form of bodily harm12, with the potential for much more severe health complications13.

1. Non-fatal, non-sexual offences against the person

  • 14 R v. Thomas (1985) 81 Cr App R 331.
  • 15 Collins v. Wilcock [1984] 1 WLR 1172, 1177 (Goff LJ).
  • 16 R v. Dica [2004] QB 1257; R. v. Konzani [2005] EWCA Crim 706; R v. Golding [2014] EWCA Crim 889.
  • 17 R v. Brady [2006] EWCA Crim 2413. See also Ormerod David, Smith and Hogan’s Criminal Law (13th edn, (...)
  • 18 Gilbert H., “Time to Reconsider the Lawfulness of Ritual Male Circumcision” (2007) 3 European Human (...)
  • 19 R v. Chan-Fook [1994] 1 WLR 689; R v. Ireland, R v. Burstow [1998] AC 147; and R v. Dhaliwal [2006] (...)

7Nevertheless, ritual male circumcision technically amounts to physical bodily harm. English criminal law attaches great significance to personal autonomy and this includes bodily integrity. Consequently, it prohibits all forms of unwanted personal contact. In its least serious form – “battery” – this includes the slightest touching of another (including through clothing14), subject to implied consent as a defence to the physical contacts of ordinary life15. In its most serious form, unwanted personal contact can lead to catastrophic harm, for example the transmission of a serious sexual disease16 and the causing of permanent disability17. Such severe physical harm constitutes “grievous bodily harm” (GBH) and this arguably captures the nature of ritual male circumcision given the irreversibility of the operation and the fact it involves “the amputation of healthy, nerve-rich skin”18. The definition of GBH also extends to psychiatric harm: this must take the form of a recognised psychiatric condition, verified by medical experts19. Where circumcision impacts upon a male child’s psychiatric wellbeing, this may present a further GBH issue.

  • 20 GBH under s 20 requires proof of intention to do, or recklessness as to causing, some harm: see R v (...)
  • 21 DPP v Smith [1961] AC 290, 334 (Viscount Kilmuir LC).
  • 22 R v. Bollom (2004) 2 Cr App R 6 [53] (Fulford J).
  • 23 https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard#a15 a (...)
  • 24 R v. Brown and Stratton [1998] Crim LR 485, 486.
  • 25 See above (n 22).
  • 26 For example, see Fox Marie and Thomson Matthew, “Short Changed? The Law and Ethics of Male Circumci (...)
  • 27 For instance, see Fox Marie and Thomson Matthew, “A Covenant with the Status Quo? Male Circumcision (...)

8GBH by a defendant (D) on a victim (V) is prohibited under both sections 18 and 20 of the Offences against the Person Act 1861 (the 1861 Act)20. It is generally defined as “really serious harm”21 – although this does not have to be “life-threatening, dangerous or permanent”22. The Crown Prosecution Service’s Charging Standards make it clear that GBH can include loss of sensory functions, visible disfigurement and injuries which cause substantial blood loss23. The presence of GBH is assessed objectively24: whilst this means that V’s own (subjective) views of their harm will be irrelevant in determining GBH, it may be that V’s characteristics (for example, age) can be taken into account in assessing whether they have suffered GBH by D25. This may be particularly significant given the young age at which ritual male circumcision is often performed and the associated pain and trauma that a child may experience compared to an adult. Indeed, consideration of age in relation to ritual male circumcision raises wider questions about a child’s right to bodily integrity and the criminal law’s (objective/subjective) assessment of harm26. Such assessment may be complicated by the dominance of a male circumcision discourse which downplays the nature of harm inherent in the procedure whilst asserting its innate “masculinity”27.

2. Reform of grievous bodily harm

  • 28 http://lawcommission.justice.gov.uk/docs/cp217_offences_against_the_person.pdf accessed 12 December (...)
  • 29 Horder Jeremy, “Rethinking Non-Fatal Offences against the Person” (1994) 14 Oxford Journal of Legal (...)
  • 30 This view is reflected elsewhere: for example, see Jefferson Michael, “Offences against the Person: (...)

9Despite the fact that ritual male circumcision technically amounts to GBH, the Law Commission of England and Wales has accepted the lawfulness of the practice. In its 1995 Consultation Paper (no 139) “Consent in the Criminal Law”, the Commission failed to debate the lawfulness of ritual male circumcision and this position continues today. In November 2014, the Commission published a scoping consultation paper on offences against the person28 in which it suggests that GBH should be renamed as an offence of “serious injury”. Previously, commentators such as Horder have expressed concern that accurate labelling in the 1861 Act’s offences (including “grievous bodily harm”) may be lost by adoption of more vacuous offence descriptions (such as “serious injury”) which convey too anaemic an understanding of the wrong caused29. This implies a preference for more bespoke offences. It is not envisaged30 that recasting GBH would alter the classification of ritual male circumcision as GBH, although if ritual male circumcision were to be criminalised it might be that accurate labelling would demand the framing of a clear free-standing offence (as with FGM).

D. Consent and criminal law

  • 31 Brown (n 4) 248 (Lord Lowry).
  • 32 S 47 of the 1861 Act: it is an offence to commit an assault or battery occasioning actual bodily ha (...)
  • 33 Brown (n 4) 248 (Lord Lowry). However, note comments of the Law Commission in Consultation Paper no (...)

10Ultimately, the legality of ritual male circumcision in England is regulated by the defence of consent. The House of Lords has determined that D cannot rely on V’s consent to GBH as a defence to offences under sections 18 or 20 of the 1861 Act31. Indeed, V’s consent is also ineffective to a charge of actual bodily harm (ABH)32, an offence which sits between battery and GBH in level of seriousness. As a result, D may only rely on V’s consent to the lowest levels of physical harm: namely battery33.

  • 34 Brown (n 4).
  • 35 Brown (n 4) 266 (Lord Mustill).

11Nonetheless, English criminal law does permit exceptions to the rule that V’s consent is irrelevant as a defence for D above battery. In limited instances, V’s consent affords a defence for D where the harm amounts to ABH or GBH. One such exception exists for the purposes of surgical operations34. It is clear from existing domestic case law that the consent of both parents to their son’s ritual circumcision will be prioritised over the child’s bodily autonomy35 – unless the child is deemed capable of providing consent. This explains how English criminal law justifies the lawfulness of ritual male circumcision. However, it is also clear that male circumcision represents a fundamental challenge to a child’s bodily integrity. This prompts a wider evaluation of the criminal law’s treatment of consent to harm, including reference to key principles underpinning the criminal law.

1. “Public policy”

  • 36 Tolmie Julia, “Consent to Harmful Assaults: The Case for Moving Away from Category-Based Decision M (...)
  • 37 [2005] 1 WLR 910.
  • 38 Ibid. § 11.
  • 39 Tolmie Julia (n 36) 663.
  • 40 For discussion, see Tolmie Julia (n 36) 660-661.

12English criminal law adopts a “piecemeal and arbitrary”36 approach to determining the validity of consent as a defence to harm above assault and battery. This is often characterised as a pragmatic strategy, allowing consent to ABH or GBH to operate only as a defence when permitted by public policy. This was acknowledged by Lord Woolf CJ in R. v. Barnes37 when he stated that “[t]he advantage of identifying that the defence is based upon public policy is that it renders it unnecessary to find a separate jurisprudential basis for application of the defence in the various different factual contexts in which an offence could be committed […] It also means that changing public attitudes can affect the activities which are classified as unlawful”38. Unfortunately, as Tolmie notes, such an approach results in an unprincipled decision-making process whereby a harmful activity (more serious than a battery) must fall within a recognised exception in order for consent to be effective. This creates a random patchwork of lawful and unlawful activities39. Identifiable public policy factors include: the nature and extent of the harm; V’s freewill and vulnerability; the morality of the conduct; and the social utility of the conduct40. The weighing of these factors has informed the creation of blanket categories sanctioning consent as a defence to harm greater than a battery.

2. Application of “public policy”

13Evidently, ritual male circumcision constitutes a lawful activity to which consent is a valid defence, even where that consent is not given by the child but, instead, by his parents. However, it is curious that, whilst V’s vulnerability is a relevant consideration in identifying category-based exceptions, this is something which has failed to rouse judicial opinion on the very legality of one of those exceptions (particularly a practice as surgically invasive as ritual male circumcision).

  • 41 Ibid. 660.
  • 42 As proposed by Tolmie Julia (n 36).
  • 43 R. v. Adesanya, The Times, 16-17 July 1974. See also Poulter Sebastian, “Foreign Customs and the En (...)
  • 44 See Gilbert H. (n 18) 285-286.

14Vulnerability has been understood as relating to, for instance, age and the presence of power imbalances between D and V41. As such, it may be that a more nuanced, case-by-case application of public policy ideas42 (such as vulnerability) would yield a more rigorous assessment of consent, specifically one which better balanced the competing issues of parental interests and a child’s freedom from harm. It may also reduce the incoherence of the criminal law’s exceptions allowing consent as a defence to ABH or GBH – especially those exceptions involving harm to children where parental consent remains acceptable in the context of some religious or cultural practices (like ritual male circumcision) but not in the context of others (for example, scarification of cheeks by incision43). At a European human rights level, this could more accurately weigh parents’ right to freedom of religion under Article 9 ECHR against a child’s rights to bodily integrity, freedom of religion and right not to be subject to inhuman and degrading treatment under Articles 8, 9 and 3 ECHR, respectively44.

3. Ritual male circumcision and principles of criminal law

  • 45 Feinberg Joel, The Moral Limits of the Criminal Law (Vols. 1 - 4) (Oxford University Press 1984) 87 (...)
  • 46 Baker Dennis, “The Moral Limits of Consent as a Defense in the Criminal Law” (2009) 12 New Criminal (...)
  • 47 Parents (and those charged with parental responsibility) who physically correct their children have (...)
  • 48 Children and Young Persons Act 1933, s 50. The doctrine of doli incapax, which imposed a presumptio (...)

15The lack of an even balancing between the interests of parents and children in ritual male circumcision demonstrates the criminal law’s relegation of key criminalisation principles in the name of parental control and freedom of religion. Indeed, it elevates parental interests above those of children even though the criminal law protects all human life and seeks to criminalise acts or omissions based on (amongst other factors) protection from harm (“the harm principle”45). This idea not only seeks to ensure an individual’s autonomy but also, arguably, their human dignity46. Subordination of these interests reflects the criminal law’s deference towards parental management of children in other spheres, for instance lawful chastisement47, and represents a legal view of children which equates their lack of capacity to consent (essentially, forfeiture of consent) with an automatic parental determination of consent. This prioritisation of parental wishes above the inherent bodily autonomy of the child highlights a fundamental awkwardness between English criminal law’s desire to avoid criminalisation of parents and the demands of children’s rights. It also highlights the criminal law’s reluctance to attribute capacity to young children as reflected in the minimum age of criminal responsibility. In England and Wales the criminal law only speaks to children as responsible agents from the age of 10 and above48.

E. Conclusion

16English criminal law has an uneasy relationship with protection of children. This is exemplified by debates about the legality of ritual male circumcision. Whilst domestic criminal law exists to protect all individuals from different types of harm, including serious physical bodily harm, it is clearly willing to sacrifice this criminalisation principle where a child’s lack of capacity removes its right to self-determination. English case law places that determination in the hands of those closest to the child – his parents – and in the process embeds a questionable approach to children’s rights as balanced against the rights of parents. This is exacerbated by controversies surrounding when consent can/should act as a defence to harm above battery, a matter which is led by dubious and uncertain recourse to vague “public policy” criteria. As such, domestic criminal law’s acquiescence in matters of ritual male circumcision may be symbolic of its wider ambivalence about the relevance of children’s rights across different criminal matters.

  • 49 See below for the reports on these two fields.

17Overall, there is a sense that ritual male circumcision is simply assumed to be lawful by English courts. This position stems from the unquestioning House of Lords dicta in Brown that the procedure must be legal because this had always been the case. The dearth of English criminal jurisprudence on ritual male circumcision perhaps suggests why the current loose legal approach to the procedure has endured. Indeed, the lack of criminal cases may be indicative of how domestic criminal law does not represent the most appropriate legal site in which to contest the procedure – particularly given the religious liberty, children’s rights and parental choice implications that may arise for consideration, not to mention problems in deciding when to prosecute. These factors point to a greater role for family law and more effective professional regulation for medical practitioners49.

III. Family law

A. Introduction

  • 50 Bainham Andrew and Gilmore Stephen, Children: The Modern Law (Jordan 2013) 217.
  • 51 For an overall approach to religion and children in English law, see Taylor Rachel, “Parental Respo (...)

18The approach of the UK family courts to the religious upbringing of children, including matters of ritual male circumcision, could be summarised in one sentence: “[t]he child’s religious heritage, while an important matter, may need in some cases to defer to other welfare considerations”50. Indeed, family law cases involving ritual male circumcision have tended to be those involving parental disputes over the religious upbringing of children. There are three English cases under the Children Act 1989 (the 1989 Act) where circumcision was an issue, but none in Northern Ireland or Scotland. These cases should be located in a wider body of caselaw on the religious upbringing of children, covering other issues than just ritual male circumcision51.

19Section B considers the law on parental responsibility over a child’s religious upbringing and the principles used by courts to determine parental disputes. Section C then looks at the courts’ approach to defining circumcision. The rest of Part III considers the factors used by courts as reasons not to order circumcision, including: arguments based on the environment of the child’s upbringing and socialisation (Section D); the child’s age and consent to ritual circumcision (Section E); and arguments based on the physical integrity of the child, the harm, the (small) risks associated with circumcision and the irreversible nature of the operation (Section F). Section G considers whether there is a difference in adoption, foster care and care cases. More recently, one judgment has said that male circumcision constituted significant harm to the child, but that society and the law are prepared to tolerate non-therapeutic ritual male circumcision whereas no form of FGM is acceptable. Section H concludes that family law is a crucial vehicle for the determination of the lawfulness and the regulation of such circumcision. There is no intention to penalise or repress the practice, but there is some regulation of it, and courts are reluctant to order circumcision when parents disagree.

B. Parental responsibility and the religious upbringing of children

  • 52 Re J (A Minor) (n 2) 685 (Wall J).
  • 53 Taylor Rachel (n 51) 128-129.

20In English law, the concept of parental responsibility covers the rights and duties of parenthood. There is no legislative provision on the religious upbringing of children, but Re J (A Minor) summarised the current position of domestic law: the 1989 Act does not impose any obligation on parents in respect of religious upbringing or instruction, and parental responsibility “clearly includes the right to bring up children in a particular religious faith, or in none”52. It is suggested that religious upbringing includes a range of restrictions and obligations as part of everyday life, such as diet and clothing, “attendance at or participation in services, rituals, collective worship and festivals and the provision of religious education”, as well as the two more unusual decisions of removal from religious education and collective worship at school, and the circumcision of male children53.

21Private law disputes about children (that is, those disputes that do not involve public authorities, which are considered below in Section G) are dealt with under section 1 (1) of the 1989 Act which provides that “the child’s welfare shall be the court’s paramount consideration”. Subsequently, section 1 (3) provides that the court shall consider a list of statutory factors including, inter alia, the child’s wishes, the child’s needs, the effect on the child of any change of circumstances, any harm which the child has suffered or is at risk of suffering, the capacity of each parent of meeting the child’s needs, and the child’s age, sex, background and any other relevant characteristics. It is this last factor which may include the child’s religious upbringing. Overall the courts have a very wide discretion to determine what is in a child’s welfare.

  • 54 [2011] EWHC 3737 (Fam) [85].

22In Re N (A Child: Religion: Jehovah’s Witness), the court stated the principles which should guide its approach: both parents have a right to choose the child’s religious upbringing and the child should have the opportunity to learn about and experience both religions if they are socially acceptable; if some religious practices involve a lifestyle which conflicts with the lifestyle of the other parent and they have a detrimental impact on the child’s welfare, then the court may restrict the child’s involvement in those practices; restrictions on religious practices must be proportionate; and the child’s welfare is the court’s paramount consideration54.

  • 55 For example in Re P (A Child) (Residence Order: Restriction Order) [1999] 2 FLR 573 (CA), Orthodox (...)
  • 56 Re J (A Minor) (n 5) 575 (Thorpe LJ).
  • 57 Re A (Care Proceedings: Religious Upbringing) [2010] EWHC 2503 (Fam) [73].

23There is no process for determining the formal belonging of a child to a religion, therefore, parents determine the child’s religious upbringing rather than the child’s religion. The child’s religion under religious law, and any parental agreement about the child’s religious upbringing, may be considered by the court but are not legally binding55. The courts especially consider how the child has been or will be brought up; for example, one court emphasised that “the newborn does not share the perception of his parents or of the religious community to which the parents belong. A child’s perception of his or her religion generally depends on involvement in worship and teaching within the family. From this develops the emotional, intellectual, psychological and spiritual sense of belonging to a religious faith”56. This was confirmed in a recent case where the court noted that a child’s religious persuasion evolved as the child matured and while the religious persuasion of a very young child was “necessarily that of his parents”, the child would inevitably “make his own choice” as he grew older, sometimes against parental wishes57.

C. The courts’ approach to defining circumcision

  • 58 For example, see T v. S (Wardship) [2011] EWHC 1608 (Fam) for a case of medically indicated circumc (...)
  • 59 Re J (A Minor) (n 2) 688 (Wall J).

24On occasion, courts have allowed male circumcision for therapeutic reasons58. As for non-therapeutic circumcision, Re J (A Minor) confirms that this is lawful and an aspect of parental responsibility59. In this dispute between a Muslim father and a Christian mother over their five-year old boy, the court considered the 1995 Law Commission paper “Consent in the Criminal Law”. It compared ritual circumcision to FGM, and made a strong statement that male circumcision was lawful:

  • 60 Ibid. 690.

although the origins of ritual circumcision are unknown, the fact remains that there have, historically, been a number of medical justifications put forward for male circumcision, and there are certain specific, albeit rare, medical conditions for which it is currently deemed necessary. Whilst the medical benefits of ritual male circumcision are now controversial, the fact remains that it is not only insisted upon by Muslims and Jews, but that male circumcision itself has, over the years, become an accepted practice amongst a significant number of parents in England. In my judgment, therefore, where two parents, jointly exercising parental responsibility for a male child, cause him to be ritually circumcised in accordance with the tenets of their religion, that exercise of parental responsibility is lawful60.

  • 61 Ibid. 682.
  • 62 [2001] 3 FCR 648 (Fam) 660 (Wilson J).
  • 63 See above (n 6).
  • 64 (n 6) [17] (Baron J).

25The courts also hear evidence from experts in religious law, e.g. Islamic law experts in Re J (A Minor)61 and Re S (Change of Names: Cultural Factors)62 that circumcision was “strongly recommended” or an “obligatory duty” or very important socially and culturally. The courts may also take another system of religious law into account, as for example in Re S (Specific Issue Order: Religion: Circumcision)63, in which the father, a Jain Hindu, said that circumcision was strictly forbidden in Jainism and a circumcised person “would find it almost impossible to find a match”64. There is consistency across these judgments: courts do rely on expert evidence about the nature and sense of obligation of circumcision under religious law, even though religious evidence is not determinative of the issue.

  • 65 In any case, parents are not bound by a pre-birth agreement: Re W (A Minor) (Residence Order) [1992 (...)
  • 66 Re J (A Minor) (n 5) 577 (Butler-Sloss).
  • 67 (n 6).

26Ultimately, the courts view circumcision as an unusual procedure which is irreversible and of fundamental importance to the child, requiring the agreement of both parents. For example, in Re J (A Minor), the court said that when both parents agreed, the courts could not interfere with circumcision, but that there was a legal presumption that circumcision should not go ahead with the opposition of the residential parent. The court discussed guidance from medical professional bodies which recommend that doctors obtain the written consent of both parents before performing any circumcision. In that case, the mother had consented to the boy’s circumcision when she was pregnant but she later changed her mind after the boy’s birth. The court said that her previous consent was irrelevant65, and that circumcision could not go ahead without her consent. On appeal, the court confirmed that a parent could not decide alone on a small group of decisions, including circumcision, sterilisation and change of name66. In Re S (Change of Names: Cultural Factors), the court allowed the child to be brought up in the Muslim faith and allowed circumcision as a consequence; it only said that the father had not articulated any specific objection and thus it did not discuss circumcision as requiring joint parental agreement. The requirement for joint parental agreement was not discussed either in Re S (Specific Issue Order: Religion: Circumcision) but the court did not allow circumcision67.

D. Arguments based on the environment of the child’s upbringing and socialisation

27In these cases, all of which concerned Islam rather than Judaism, circumcision was not considered as a separate issue but, rather, as part of the wider question of the children’s religious upbringing. To resolve the parental disputes, each court considered the environment in which the children were going to be brought up and especially whether the boy was going to live in a Muslim environment in which he would interact with other Muslim boys who would be circumcised.

  • 68 (n 2) 679 (Wall J).
  • 69 Ibid. 700.

28In Re J (A Minor), the judge noted that the father was Turkish by birth and upbringing, although he was a permanent resident in the UK and had a British passport. He was also a Muslim, although he freely accepted he did not actively observed many of the tenets of his faith68. The judge noted that the mother was English, and was notionally a Christian and a non-practising Church of England member. The judge was satisfied that the boy was a Muslim under Islamic law but went on to consider the position of English law. The mother had not converted to Islam, was not a Muslim, had no interest in Islam and was not going to take steps to acquaint the boy to Islam or the Turkish side of his inheritance. This may suggest that if she had been a Muslim, i.e. if both parents were Muslim but one opposed circumcision, the judge might well have ordered circumcision. The judge accepted that a child’s religion was not determined by religious law but by all the relevant circumstances and in that case, the boy did not have a settled religious faith, had a mixed heritage and essentially secular lifestyle. The boy was being brought up “in an essentially secular household”, his only contact with Islam was through his father who himself did not seem to have Muslim friends or mix in Muslim circles. Accordingly, the judge did not order that the boy be brought up a Muslim or be circumcised. In addition, the judge considered the relationship between the child’s parents. The parents in the case did not communicate well, the child was caught in the middle of the dispute and that position was likely to be reinforced if he was circumcised because the mother would not be able to present circumcision in a positive light. Finally, the fact that the mother was the residential parent and was strongly opposed to circumcision should not be taken lightly (although it was not a determining factor), because “to impose a medically unnecessary surgical intervention on a residential parent who is opposed to it” was a strong thing69.

  • 70 Ibid. 698.

29In Re S (Change of Names: Cultural Factors), a Muslim woman who had married a Sikh man against her family’s wishes but then reconciled with her family following her divorce, applied for an order that their three and a half year-old boy (who had been registered with Sikh names) be known by Muslim names and be brought up as a Muslim. Islamic law experts said that deep-seated conflicts between the Muslim and Sikh communities might cause a child with Sikh names living in a Muslim community to find it difficult to be accepted socially and culturally as a child or an adult, by that community. The court found that the boy, who was being brought up by his mother in the Muslim community, should be enabled to integrate into the obviously appropriate environment for both of them. He could be known informally under Muslim names, although his names should not be changed formally so as not to eliminate his half-Sikh identity. About circumcision, the father had not articulated any strong objections; if the boy was not circumcised, he would “undoubtedly be different from the majority of his peer group”70 and there was a risk that he may be picked on or teased by his peers, so circumcision was allowed.

30In Re S (Specific Issue Order: Religion: Circumcision), an 8-year-old boy and his 10-year-old sister were raised in a Jain Hindu environment (from the father) with some influences from Islam (from the mother). They had a mixed cultural heritage, had experienced life both in a Jain and a Muslim household, and were too old for one religion to be favoured over another. Circumcision was not allowed because: the boy was not going to be brought up as a Muslim; circumcision could not be undone; and he may be prevented from practising Jainism when he grew up if he was circumcised, whereas he could be circumcised later if he wished to follow Islam.

E. The child’s age and consent to ritual circumcision

  • 71 Ibid. 688.
  • 72 [2004] EWHC 1282.
  • 73 S (Children) [2004] EWCA Civ 1257.

31In Re S (Change of Names: Cultural Factors), the court did not consider the age or consent of the three and a half year-old boy. In Re J (A Minor)71, the court said the five year-old boy was too young to make an informed decision and give consent. In Re S (Specific Issue Order: Religion: Circumcision)72, the court said that the eight and a half year-old boy would be competent by the age of puberty when Islam required circumcision to be carried out by, and that he could make an informed decision then; this was confirmed on appeal, the court saying that he should be able to make his own decision when he was competent73.

  • 74 (n 6). This was a case about whether oral contraceptives could be given to underage girls without t (...)

32It appears that only the views of a child who is old enough are considered. This is in line with section 1 (3)(a) of the 1989 Act, according to which the court must have regard to “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”, and with Gillick v. West Norfolk and Wisbech Area Health Authority74, in which the court said that where a child was old enough to form his/her own views then it must be expected that this will be considered to be of greater validity than the parents’ views.

F. The harm, medical risks and irreversibility of circumcision

33The courts do take account of arguments based on harm to the child, the irreversibility of the procedure, medical opinion about circumcision, but not really the medical context in which circumcision is carried out. In Re J (A Minor), the judge engaged in a fairly lengthy discussion of medical attitudes to ritual circumcision, and drew upon medical evidence including guidance from professional medical bodies (the General Medical Council (GMC) and the British Medical Association (BMA)) and from the anti-circumcision body NORM-UK. He said:

  • 75 (n 2) 693 (Wall J).

[t]he medical benefits arising from circumcision… are highly contentious… There is a powerful body of medical opinion which puts strongly in issue any suggestion that male circumcision prevents or reduces the risk of urinary tract infection, penile cancer, or sexually transmitted disease. Equally contentious is the suggestion that it reduces the incidence of cervical cancer in women… The procedure for a child of J’s age carries small but identifiable physical and psychological risks. It is an invasive procedure… There is evidence that… there is consequential loss of sexual sensory pleasure during sexual intercourse… [This] is an issue for society, not the health professionals75.

  • 76 Ibid. 679.
  • 77 Re J (A Minor) (n 5) 577 (Butler-Sloss).

34The father was not opposed to the procedure being carried out in hospital under general anaesthetic by a qualified medical practitioner76, but this does not seem to have been considered by the judge. On appeal, the court said that the decision to circumcise a child on grounds other than medical necessity was a very important one, was irreversible and should only be carried out when both parents, or the court, approved it77.

  • 78 (n 6) [83] (Baron J).

35There was no reference to the risk or the harm of circumcision in Re S (Change of Names: Cultural Factors). In Re S (Specific Issue Order: Religion: Circumcision), the judge simply said that “[c]ircumcision once done cannot be undone”78. Overall there is some consideration of the risks of circumcision but not on a systematic basis.

  • 79 (n 11).
  • 80 Ibid. [60] (Munby J).
  • 81 Ibid. [69].
  • 82 Ibid. [72].
  • 83 Ibid. [72-73].

36Interestingly however, in B and G (Children) (No 2)79, a case about FGM and whether the threshold of significant harm was passed so as to initiate care proceedings, the judge made interesting comments about male circumcision. He said that the least severe forms of FGM (Type IV), e.g. pricking, piercing and incising, were much less invasive than male circumcision80, and if the least severe forms of FGM amounted to significant harm then male circumcision did too81. The judge then said that there was a clear difference between FGM and male circumcision, the latter constituting “reasonable parenting”. While FGM could never be tolerated, “[s]ociety and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even purely cultural reasons”82. If FGM was sufficient to establish “threshold” in accordance with section 31, male circumcision without more would not83. This case is extremely thought-provoking because it recognises that male circumcision causes harm but that it is justified.

G. Circumcision in adoption, foster care and care cases

  • 84 Section 1 (5) of the Children and Adoption Act 2002 was repealed in respect of England through the (...)
  • 85 Sections 2 (5) and (6) and section 33 (3) of the 1989 Act.
  • 86 [2010] EWHC 2503 (Fam).
  • 87 [2009] EWCA Civ 205.

37Concerning adoption and foster care, the adoption agency or the local authority, respectively under section 1 (5) of the Children and Adoption Act 2002 and under section 22(5)(c) of the 1989 Act, “must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background” in placing the child for adoption or in making a decision about care84. It is stricter for care proceedings, section 33(6)(a) of the 1989 Act providing that a local authority placing a child into care is under a duty not to “cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made”. The parents and the local authority share parental responsibility85. There is no reported case in which the parents of a child who was placed in care requested that the boy be circumcised but were faced with the local authority’s refusal. In Re A (Care Proceedings: Religious Upbringing)86 and Re B-M (Children)87, which do not concern circumcision but are relevant to understand religious upbringing, the courts approved the decisions of local authorities favouring a flexible and fluid understanding of the child’s religious upbringing focused on the child’s welfare, rather than an exact match of religious background between the child and the carers.

H. Conclusion

38Part III shows that ritual male circumcision is regulated to some extent through family law disputes. However, there is no coherent “framework” or approach for regulating it, beyond the acknowledgement that it is an unusual act which requires joint parental agreement. Cultural and societal values are allowed by the courts to come into play. By referring to the parents’ religious and cultural background, to how the children are perceived under religious law, and to the importance of the practice for the religion in question, English courts are concerned to some extent about the preservation of minority religious and cultural practices. They do accept the evidence that circumcision is an essential religious ritual for Muslim communities, and would no doubt say the same for the Jewish community. There is some consideration of harm but this is not done consistently. There is no systematic approach to children’s rights either, whether the child’s right to bodily integrity or the child’s right to have his views taken into account. There are however some references to the child’s future consent to circumcision and future choice of religion.

  • 88 E.g. see Re R (A Minor) (Blood Transfusion) [1993] 2 FLR 757 (Fam); Re S (A Minor) (Medical Treatme (...)
  • 89 R (Williamson) v. Secretary of State for Education and Employment [2005] UKHL 15.

39There are questions about the proper role of family law, whether a ban on the procedure would be proportionate and whether it would be possible to distinguish between circumcision and other religious rituals and practices. English law clearly differentiates between ritual male circumcision and other religious and cultural practices, many of the latter being prohibited. For example the tattooing of minors is prohibited under the Tattooing of Minors Act 1969, parental objections on religious grounds to life-saving medical treatment are routinely overturned by the courts88, and parents do not have the right to delegate to teachers the right to use corporal punishment on their children, even if for religious reasons89.

40A few cases have compared ritual male circumcision to FGM, finding that male circumcision has nowhere near the same consequences as FGM. There have been no arguments based on non-discrimination between the two practices or about the necessity to “equalise” criminal law. Although the courts do not regard the practice as dangerous, they also do not see it as a benign or routine. They have tended to say that male circumcision has long-term consequences, carries small medical risks and is irreversible. Whilst there has not been a major focus on the child’s bodily integrity, in the sense that it is not treated as a form of assault, there is discussion of the lack of medical benefits and its irreversibility. There is no discussion of how the procedure is carried out, for example by a qualified doctor or in hospital.

41Finally, the socialisation of children is an important issue for the courts. They pay considerable attention to the religious environment in which the child will be brought up and socialised (or not), thus demonstrating a pragmatic approach. However, socialisation is also an issue, in the sense that in the context of growing up in a western country, a child should not be the odd one out by being circumcised and at risk of being taunted. Part IV next examines how health law deals with circumcision and might provide possibilities for the medical regulation of the practice.

IV. Health law

A. Introduction

  • 90 See Re C (Welfare of the Child: Immunisation) [2003] 2 FLR 1095 (CA); Diekema Douglas S, “Parental (...)
  • 91 McHale Jean and Fox Marie, Health Care Law: Text, Cases and Materials (2nd ed, Sweet & Maxwell 2007 (...)

42As noted above, it is generally presumed, albeit on the basis of scant legal authority, that ritual male circumcision is not proscribed by the criminal law, and family law judges have assumed that there will be no interference where both parents agree that a child who is too young to consent should be circumcised. The upshot of these dicta is that circumcising male children has largely been cast as a non-issue for UK health law, in contrast to many other scenarios that involve non-therapeutic interventions on the body of children too young to consent, such as the administration of vaccines90, or enrolment of children in clinical research91.

  • 92 The BMA is the doctors’ regulatory body and its guidance is often produced in response to requests (...)
  • 93 See, for instance, the emphasis placed on GMC Guidance in framing the legal duty of confidentiality (...)

43However, it will be argued that circumcision does pose problems in health practice. First, as discussed in section E below, many circumcisions performed for religious or cultural reasons are carried out by persons lacking adequate medical training and often on inadequate premises. The lack of legal regulation is particularly likely to impact on vulnerable children whose parents cannot afford access to skilled medical practitioners. Thus, the fundamental question for health law is whether law should regulate the practice of male circumcision, for instance, by requiring that it be performed only by registered medical practitioners, following the administration of anaesthetic, or imposing restrictions on places where it can be performed. Secondly, where parents do approach health professionals, a request for non-therapeutic circumcision may pose an ethical dilemma for the individual doctor if he or she is not persuaded that the procedure is in the best interests of the child concerned or that it constitutes proper medical treatment (see section D). As a result, doctors have approached the BMA for guidance on how to respond to such requests. In the absence of clear legal rules, professional guidance issued by the BMA and GMC92 is critically important. Indeed, in the past, UK courts have looked to professional guidance to frame laws93. However it will be suggested in section B below that the BMA and GMC position on circumcision offers little by way of concrete help to health professionals, and may need to be rethought in the light of both legal developments and problems that have emerged with regard to unregulated circumcision.

B. Professional guidance

  • 94 BMA, The Law and Ethics of Male Circumcision: Guidance for Doctors (June 2006).

44Current BMA guidance dates from 200694 and largely sets out the then applicable UK law as detailed in Parts II and III of this report, coupled with a set of guiding principles such as the paramountcy of the child’s best interests. It then notes:

  • 95 Ibid. § 4.

[t]he medical harms or benefits have not been unequivocally proven but there are clear risks of harm if the procedure is done inexpertly. The Association has no policy on these issues. Indeed, it would be difficult to formulate a policy in the absence of unambiguously clear and consistent medical data on the implications of the intervention. As a general rule, however, the BMA believes that parents should be entitled to make choices about how best to promote their children’s interests, and it is for society to decide what limits should be imposed on parental choices95.

  • 96 BMA, Female Genital Mutilation: Caring for Patients and Safeguarding Children (July 2011) § 2.1.
  • 97 Fox Marie and Thomson Michael (n 26); Davis Denna S., “Male and Female Genital Alteration: A Collis (...)

45Weighing benefits and harms is thus at the heart of judgements about the legitimacy of circumcision and determinations of whether parental consent to the procedure is valid. This may be contrasted with the BMA’s stance on FGM, where the Association is clear that “[a]ll forms [of FGM] are mutilating and carry health risks”96. This stark dichotomy between male and female genital cutting has been criticised by health lawyers97, although it does reflect the criminal law’s differential approach to both practices. However, in this regard it is worth noting that in a recent High Court decision, Munby J stated, obiter, that not only was male circumcision rarely performed for therapeutic reasons, but also that it was as harmful and invasive as some forms of FGM:

  • 98 B and G (Children) (No 2) (n 11) [59-60] (Munby J).

[c]ircumcision of the male… 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 in the appearance of the genitals and leaves a more or less prominent scar around the circumference of the penis… 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 incision, are on any view much less invasive than male circumcision98.

  • 99 Ibid. [72]. For a criticism of this reasoning see Earp Brian, “On the Supposed Distinction Between (...)

46He went on to conclude that FGM and male circumcision could nevertheless be distinguished, because FGM, unlike male circumcision, has no religious basis, lacks any medical justification and confers no health benefits, whereas “male circumcision is seen by some (although opinion is divided) as providing hygienic or prophylactic benefit”99. However his observation about male circumcision being more invasive than some forms of female genital cutting seems to cast doubt on whether the BMA can continue to maintain the sharp division which characterises its guidance on the two practices.

  • 100 BMA (n 94) § 4.5.

47It will be seen below that parental consent plays a crucial role in the BMA guidance. Such consent must be grounded in the child’s interests and given with knowledge of the risks that accompany the procedure. The guidance also allows for health professionals to opt out of performing circumcision. Moreover, it is concerned with the maintenance of professional standards, warning of the implications of poorly performed circumcisions (see Section F below). It suggests that doctors who are unfamiliar with the practice should seek advice from more experienced colleagues and, if necessary “refer a family to a paediatric surgeon, urologist or other doctor experienced in performing the operation for advice and care”100.

  • 101 GMC, Guidance for Doctors Who Are Asked to Circumcise Male Children (September 1997) (withdrawn 200 (...)
  • 102 GMC, Personal Beliefs and Medical Practice (March 2013) § 22.
  • 103 Shaw David, “Cutting Through Red Tape: Non-Therapeutic Circumcision and Unethical Guidelines” (2009 (...)

48The GMC guidance, which is concerned more generally with “personal beliefs” of doctors is perfunctory as regards the ethics and decision-making process. The Council had issued guidance specifically addressing male circumcision in 1997101, but this was withdrawn in 2007. The general guidance does however flesh out the question of standards, stipulating that doctors must have “the necessary skills and experience both to perform the operation and use appropriate measures, including anaesthesia, to minimise pain and discomfort both during and after the procedure”102. An earlier version of this guidance, published in 2008, has been criticised as flawed and biased in favour of nontherapeutic circumcision103.

C. Assessing harms and benefits

  • 104 BMA (n 94) § 4.1.
  • 105 Fox Marie and Thomson Michael (n 27).

49As noted in Part II above, the excision of healthy tissue technically amounts to physical bodily harm and prima facie constitutes a violation of the child’s bodily integrity. A critical question therefore is whether this harm can be outweighed by any health benefits of the procedure. In this regard the BMA guidance notes that “the medical evidence is inconclusive”104. This ambivalence seems to signal a shift from the Association’s earlier guidance, which was based on the assumption that the procedure did not cause significant harm105. It now acknowledges that:

  • 106 BMA (n 94) § 4.3.

[t]he medical benefits previously claimed… have not been convincingly proven, and it is now widely accepted, including by the BMA, that this surgical procedure has medical and psychological risks106.

50In assessing the best interests of the child, the BMA offers a check-list to inform the balancing exercise in which doctors must engage in determining whether a requested circumcision is in the best interests of the child. Those factors applicable to deciding the best interests of the child patient are as follows:

  • the patient’s physical and emotional needs;

  • the risk of harm or suffering for the patient;

  • the view of parents and family;

  • the implications for the family of performing, and not performing, the procedure;

  • relevant information about the patient’s religious or cultural background; and

    • 107 Ibid.

    the prioritising of options which maximise the patient’s future opportunities and choices107.

  • 108 (n 11).
  • 109 Centers for Disease Control and Prevention, Recommendations for Providers Counseling Male Patients (...)
  • 110 See, for instance Earp Brian, “Do the Benefits of Male Circumcision Outweigh the Risks? A Critique (...)
  • 111 Fox Marie and Thomson Michael, “HIV/AIDS and Circumcision: Lost in Translation” (2010) 36 Journal o (...)

51In terms of possible medical benefits, considerable weight was attached to these by Munby J in B and G (Children) (No 2)108. The medical benefits associated with male circumcision include reduction in the risk of penile cancer and reduction of the incidence of urinary tract and sexually transmitted infections. However, when these risks are unpacked it emerges that penile cancer is exceedingly rare, while infection risks can be reduced by other non-surgical measures, such as better hygiene and use of condoms. Nonetheless, claims that the benefits of circumcision surgery outweigh the risks have been prominent in other contexts, notably in provisional guidelines recently issued by the Centers for Disease Control and Prevention on counselling of parents109. Yet many of the claims made for these benefits have been convincingly debunked110. Moreover, many of the asserted benefits are prophylactic in nature and derive from trials on adults in sub-Saharan Africa, which render it extremely problematic to seek to apply them to circumcision of infants in the developed world111.

D. The question of consent

1. Parental consent

52As regards infants too young to consent, the BMA, in line with the case law discussed above, is very clear that:

  • 112 BMA (n 94) § 4.2.2.

[…] where a child has two parents with parental responsibility, doctors considering circumcising a child must satisfy themselves that both have given valid consent. If a child presents with only one parent, the doctor must make every effort to contact the other parent in order to seek consent112.

  • 113 Ibid.
  • 114 Ibid. § 4.3.
  • 115 Ibid. § 4.3.1.
  • 116 Ibid. § 4.4.
  • 117 GMC (n 102) § 18, 20 (emphasis added).

53It goes on to note that, where parents disagree, it is open to the parent requesting circumcision to seek court authorisation, but advises that doctors in these circumstances “consider carefully whether circumcising against the wishes of one parent would be in the child’s best interests”113. The guidance is also clear that “parental preference alone is not sufficient justification for performing a surgical procedure on a child”114, and that parents must justify requests for circumcision with regard to the child’s best interests115. The doctor is obligated to ensure that parents “are aware of the issues, including the risks associated with any surgical procedures; pain, bleeding, surgical mishaps and complications of anaesthesia”116. GMC guidance on this point is more limited, providing simply that in the case of procedures provided for religious or cultural reasons “[i] f the patient is a child, you should usually provide a procedure or treatment that you assess to be in their best interests… Assessing best interests will include the child’s and/or the parents’ cultural, religious or other beliefs and values”117. It adds that a doctor who judges the procedure not to be in the best interests of a child should explain this to the parents.

2. The consent of the child

  • 118 Ibid. § 20.
  • 119 BMA (n 94) § 4.2.1.

54The GMC advises doctors to “get the child’s consent if they have the maturity and understanding to give it”118. This requirement is more fully addressed in the BMA guidance, which states that account be taken of the views of competent children119, who should if necessary be provided with support to make the decision. The relevant factors here are deemed to be:

  • the patient’s own ascertainable wishes, feelings and values

  • the patient’s ability to understand what is proposed and weigh up the alternatives

    • 120 Ibid. § 4.3.

    the patient’s potential to participate in the decision if provided with additional support or explanation120.

  • 121 Fox Marie and Thomson Michael, “Older Minors and Circumcision: Questioning the Limits of Religious (...)

55It has been argued that the case of Re S above (in line with general trends in heath law decision-making concerning young people approaching adolescence) suggests that, where possible, non-therapeutic interventions having irreversible consequence should be deferred until the child can decide for himself121.

E. Regulating the circumstances in which male circumcision can be performed

  • 122 A BMJ Clinical Review of male circumcision concluded that (i) absolute indications for male circumc (...)
  • 123 Gairdner Douglas, “The Fate of the Foreskin: A Study of Circumcision” (1949) 2 British Medical Jour (...)
  • 124 Rickwood A.M.K. and Walker Jenny, “Is Phimosis Overdiagnosed in Boys and Are Too Many Circumcisions (...)

56In contrast to various other medical procedures governed by UK law, no regulations govern the circumstances in which circumcision can be performed. This can be compared, for instance, with the Abortion Act 1967 which stipulates that abortions may only be carried out by a registered medical practitioner on premises licensed for those purposes by the Secretary of State for Health. Clearly where circumcisions are performed by doctors then they must abide by GMC and BMA guidance as regards obtaining consent, using anaesthesia etc. However, there is no legal requirement that circumcision be carried out by someone who is medically qualified. Furthermore, in the UK circumcision is not performed on the National Health Service (NHS), except in a small number of cases to treat medical conditions, principally paraphimosis, and balanitis, which are rare122. The NHS did offer circumcision when it was established in 1948. However, following publication of Douglas Gairdner’s influential report questioning its necessity123, routine infant circumcision was removed from the NHS list of covered services in 1950 and from this point the incidence of neonatal circumcision has declined sharply in the UK124.

  • 125 See BME Health Forum, Non-clinical Male Circumcision Services in Kensington & Chelsea and Westminst (...)
  • 126 Abbott S. and Shahriar S., “An NHS Religious and Cultural Male Circumcision Service: Service Users’ (...)
  • 127 BME Health Forum (n 125).
  • 128 Butler C. R and Clarke S., “Is Infant Male Circumcision an Abuse of the Rights of the Child? Yes” ( (...)

57Given the demands on NHS resources, the majority of clinical commissioning groups (CCGs) do not fund circumcisions performed for religious or cultural reasons. In the past some Primary Care Trusts (PCTs, which preceded CCGs) endeavoured to provide services to parents seeking circumcision on religious or cultural grounds125, although these tended to be concentrated in inner city areas. For instance, Tower Hamlets established religious circumcision services on an outpatient basis126, while Oldham PCT commissioned a service, whereby the procedure was carried out by two GPs and partially funded by the Trust, and Bradford instated a nurse led service127. However, in 2007 a survey of 30 UK trusts highlighted a trend toward withdrawing such services128.

  • 129 BME Health Forum (n 125) 5.
  • 130 Eg in 2012an inquest found that an infant boy - Amitai Moshe - had died of natural causes when he w (...)

58A significant and possibly growing number of circumcisions therefore take place outside of the formal health care system, and there is nothing in UK law to prevent non-medical practitioners carrying out such circumcisions or to require them to demonstrate competence in performing the procedure. Under the tenets of the Jewish faith boys are circumcised on the eighth day after birth. Many mohels are registered members of the Initiation Society, which has been training mohels for over 200 years, and some will be medically as well as religiously qualified, but this is not a requirement. In practice, there tend to be significantly fewer complications when the procedure is performed at this early stage129, but in the UK there have been some high profile cases where infants have died following religious circumcisions130.

  • 131 Sheikh Azziz, “Should Muslims Have Faith-Based Health Services?” (2007) 334 British Medical Journal(...)
  • 132 Paranthaman Karthikeyan, Bagaria Jayshree and O’Moore Éamann, “The Need for Commissioning Circumcis (...)

59By contrast, in Muslim families the practice is more variable and boys may be circumcised at any age from birth up to about 11 years of age, which increases the risks of the procedure. In the absence of NHS provision, the demand for circumcision services by Muslim parents in the UK is met by an ill regulated combination of medical professionals offering services privately and wholly unregulated operators. Little information exists concerning the incidence of these circumcisions or complication rates. The patchy nature of such provision has led some Muslim doctors to argue for circumcision to be funded or commissioned by the NHS131. Calls to commission more comprehensive NHS provision were given credence following an investigation by Thames Valley Health Protection Unit into circumcisions that had been performed on a group of 32 boys aged between one and 10 years of age at an Islamic School in Oxfordshire. It emerged that the surgery had been performed by an overseas-qualified doctor, who had received only six months of basic surgical training, and charged £ 100 for each procedure. The report found that 13 of the boys had experienced medical complications, including infection, urethral scarring and haematoma, while three of them had endured what was described as an “incomplete circumcision” and two required a repeat circumcision132. The authors concluded that in view of:

  • 133 Ibid. 283.

the dangers associated with circumcision of young children for religious reasons when performed by unregulated operators… there is an urgent need for commissioners in the PCTs to provide a safe, reliable and high-quality circumcision service for non-medical reasons in the NHS133.

  • 134 BME Health Forum (n 125) 5-6.
  • 135 Ibid. 6.
  • 136 Butler and Clarke (n 128).
  • 137 BMA (n 94) § 4.3.
  • 138 BMA, Female Genital Mutilation (n 96) § 3.7.

60In a similar vein, the authors of a 2009 study for the BME Health Forum found that community-based circumcision services in Kensington & Chelsea and Westminster did not always comply with BMA guidance as regards the use of appropriate analgesia and obtaining informed consent134. The report recommended that circumcision services commissioned by the NHS should be introduced (with costs partly met by parents) to avoid children over 10 weeks being circumcised in the community under local anaesthetic when they would be particularly vulnerable to complications. It also proposed establishing an inpatient service for newborn circumcision to take place under local anaesthetic within two days of birth and an outpatient service available up to 10 weeks after birth performed under local anaesthetic135. Clearly, harm reduction arguments might support such calls for medicalisation of circumcision, given that the 2007 survey cited above noted that “[i] nitial experience, post withdrawal of PCT funding has shown an increase in paediatric admissions for community-related circumcision complication”136. However, there are concerns that medicalisation legitimates a harmful and non-therapeutic procedure. In this regard, the BMA guidance notes that “If there is a risk that a child may be circumcised in unhygienic or otherwise unsafe conditions, doctors may consider it better that they carry out the procedure, or refer to another practitioner, rather than allow the child to be put at risk”137. This may be contrasted with the Association’s position on FGM where, notwithstanding arguments that it would minimise health risks were female cutting to be done by doctors, in sterile conditions with anaesthesia, it concurs with the World Health Organisation’s view “that unnecessary bodily mutilation cannot be condoned by health providers; and, its medicalisation seems to legitimate the harmful practice”138.

F. Responding to harm caused by circumcision

  • 139 Such severe complications, although difficult to assess with precision, are very rare: see Weiss H. (...)
  • 140 In the UK, see Iqbal v Irfan [1994] CLY 1642 (CC); B (A Child) v Southern Hospital NHS Trust [2003] (...)
  • 141 Dowling Nicola, “Circumcision Doctor in GMC Investigation to Quit NHS” BBC News (17 November 2013) (...)

61As noted above, even where circumcisions are performed by qualified health professionals in hospital settings under anaesthesia they can result in complications. It has been estimated that complication rates for male circumcision in best practice settings range between 0.2 and 3%, with the most common complications being infections, bleeding and haematomas. Evidently, poorly performed circumcisions carry much greater potential for harm and have resulted in death or amputation of the penis139. Such negligence could result in tortious or, in extreme cases, criminal claims. In a number of common law jurisdictions patients have been compensated for the harm caused by negligently performed circumcisions140. Reported cases are rare, as in most instances the questions of harm, damage and causation will be clear and so legal claims are likely to be settled. In addition to litigation the GMC has initiated disciplinary proceedings against doctors responsible for negligently performed procedures141.

  • 142 “Grace Adeleye Guilty of Killing Baby in Botched Circumcision” BBC News (14 December 2012): https:/ (...)
  • 143 Kasprzak Emma, “Make Home Circumcisions Illegal” BBC News (14 December 2012): https://www.bbc.com/n (...)

62In cases of serious harm or death, criminal proceedings may be brought. For instance, in 2012 a nurse in Oldham was found guilty of manslaughter by gross negligence when a four week old boy died following a botched circumcision performed without anaesthetic and in exchange for money142. The nurse who, like the child’s parents, was Nigerian, testified in court that she had performed over 1,000 procedures without complication. The case, together with other reported deaths or serious complications, has prompted calls for banning home circumcisions on safety grounds143.

G. Conscientious objection

  • 144 BMA (n 94) § 4.8.
  • 145 Shaw (n 103) 185.
  • 146 GMC (n 102) § 11 and 12.
  • 147 BMA (n 94) § 4.8.

63Some doctors oppose conducting non-therapeutic surgery on a child who is too young to consent. In other cases a doctor faced with a circumcision request may conclude that the parents have not satisfied her that the procedure is in the child’s best interests. In UK law, statutory protection of a health professional’s right to conscientiously object to procedures is limited to the Abortion Act 1967 and the Human Fertilisation and Embryology Act 1990 (as amended). However, the BMA is clear that “doctors may refuse to perform non-therapeutic circumcisions for reasons of conscience,” although the grounds for objection should be explained144. The necessity of invoking the conscience clause in such cases has been questioned by David Shaw who queries why a doctor needs to invoke conscientious objection, “if application of the BMA’s check list makes it clear that it is not in the child’s best interest to perform the operation?”145 However, GMC guidance similarly assumes that relying on conscientious objection is necessary and provides that the doctor should make both patients and their colleagues aware of such objection to any procedure in advance146. If the procedure is medically necessary then, in the unlikely event that a doctor objected to it, he or she would be under an obligation to refer the patient, but the BMA observes that “[w] here the procedure is not therapeutic but a matter of patient or parental choice there is arguably no obligation to refer on”147.

H. Conclusion

  • 148 Contrast, for instance, the position in Norway or the Netherlands discussed in this volume.

64As an irreversible and medically unnecessary procedure which removes healthy tissue, it is perhaps surprising that the BMA takes a neutral position on circumcision148 and that the GMC has withdrawn its guidance. Similarly, the fact that law fails to regulate the procedure, and permits interventions on the bodies of children too young to consent, may also seem surprising. The recognition by Sir James Munby that the procedure is harmful and more so than some forms of female genital cutting, coupled with the fallout from media coverage of infant deaths, suggests the need for a rethink of existing guidance as well as NHS commissioning practice.

Concluding thoughts

65Ritual male circumcision has attracted relatively little attention in UK law. The limited criminal jurisprudence consists of obiter dicta comments which assume the legality of the procedure but offer little justification for this position. Family law jurisprudence is limited to addressing the situation where those with parental responsibility disagree about whether circumcision should be performed. Disciplinary proceedings can be taken against doctors who fail to comply with GMC and BMA guidance; they can also be sued in negligence where the procedure is performed without due care. However there is nothing in UK law which stipulates that only registered medical practitioners can perform circumcisions. This leaves criminal law to deal with circumcisions resulting in death or serious injury when performed by those lacking medical qualifications.

66Turning to possible reforms of UK law, we suggest that three broad options exist. First, and reflecting difficulties in differentiating between FGM and ritual male circumcision, the latter could be banned on the grounds that it is harmful to children and cannot reasonably be distinguished from FGM. In our view this option is unrealistic in the absence of a change in societal and attitudes and is likely to be counterproductive. Secondly, the law, whether through statutory or judicial intervention, could impose conditions on how the procedure is performed, for example by prohibiting male circumcision beyond a certain age. This would allow the views of an older child to be heard. Finally, a more realistic option might be to medicalise the procedure, for example providing that the procedure be performed only by medical professionals so as to reduce the risk of harm. This would also be in line with the approach of a number of European countries.

Notes

1 The criminal law of England applies in Wales. Scotland and Northern Ireland have slightly different criminal law traditions. England and Wales appears to be the only United Kingdom jurisdiction in which ritual male circumcision has received attention in the criminal courts. To date, the practice is yet to be considered by the criminal courts in Scotland and Northern Ireland, although the Scottish Government has indicated that ritual male circumcision is lawful in Scotland: see https://www.webarchive.org.uk/wayback/archive/20180517201204/http://www.gov.scot/Publications/2008/02/14143159/0 accessed 19 December 2014. It is also presumed lawful in Northern Ireland.

2 Male circumcision involves the removal of the entire foreskin of the penis. “Ritual” implies that the circumcision is “carried out for religious or social purposes in order to distinguish it from surgical interventions designed to treat particular medical conditions”: Re J (A Minor) (Prohibited Steps Order: Circumcision) [1999] 2 FLR 678 (Fam) 679 (Wall J), hereinafter Re J (A Minor).

3 See below (n 4).

4 R v. Brown [1994] 1 AC 212, 231 (Lord Templeman). This case did not concern ritual male circumcision: rather, the facts concern the ability to consent to harmful sado-masochistic practices. However, the House of Lords addressed ritual male circumcision when considering the limits on consent to harm.

5 Re J. (A Minor) (Prohibited Steps Order: Circumcision) [2000] 1 FLR 571 (CA) [20], [32] (Thorpe and Schiemann LJJ, respectively).

6 Re S. (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 [83] (Baron J). See also Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL).

7 S 1. It is not an offence for a female to undertake FGM on herself: see FGM Legal Guidance, published by the Crown Prosecution Service: https://www.cps.gov.uk/legal-guidance/female-genital-mutilation-prosecution-guidance accessed 15 December 2014.

8 S 2.

9 S 3.

10 S 4.

11 There is a large body of medico-legal research on the contested moral, religious, cultural and health parallels between male and female circumcision. Parts III. 6 and IV. 2, below, consider the FGM case of B and G (Children) (No 2) [2015] EWFC 3 where Munby J reflects on these parallels.

12 FGM occurs where an individual removes (cuts) or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris: https://www.cps.gov.uk/legal-guidance/female-genital-mutilation-prosecution-guidance#definition accessed 16 December 2014.

13 Such complications can arise during childbirth: ibid.

14 R v. Thomas (1985) 81 Cr App R 331.

15 Collins v. Wilcock [1984] 1 WLR 1172, 1177 (Goff LJ).

16 R v. Dica [2004] QB 1257; R. v. Konzani [2005] EWCA Crim 706; R v. Golding [2014] EWCA Crim 889.

17 R v. Brady [2006] EWCA Crim 2413. See also Ormerod David, Smith and Hogan’s Criminal Law (13th edn, Oxford University Press 2011) 651.

18 Gilbert H., “Time to Reconsider the Lawfulness of Ritual Male Circumcision” (2007) 3 European Human Rights Law Review 279-94, 287.

19 R v. Chan-Fook [1994] 1 WLR 689; R v. Ireland, R v. Burstow [1998] AC 147; and R v. Dhaliwal [2006] EWCA Crim 1139.

20 GBH under s 20 requires proof of intention to do, or recklessness as to causing, some harm: see R v. Savage & Parmenter [1992] 1 AC 699 and R v. Mowatt [1968] 1 QB 421. This means that intention to do, or foresight of, harm lower than GBH is sufficient. Contrastingly, GBH under s 18 requires proof of an intention to do GBH only (recklessness is also insufficient under s 18).

21 DPP v Smith [1961] AC 290, 334 (Viscount Kilmuir LC).

22 R v. Bollom (2004) 2 Cr App R 6 [53] (Fulford J).

23 https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard#a15 accessed 12 December 2014.

24 R v. Brown and Stratton [1998] Crim LR 485, 486.

25 See above (n 22).

26 For example, see Fox Marie and Thomson Matthew, “Short Changed? The Law and Ethics of Male Circumcision” (2005) 13 International Journal of Children’s Rights 161-81, 173-176.

27 For instance, see Fox Marie and Thomson Matthew, “A Covenant with the Status Quo? Male Circumcision and the New BMA Guidance to Doctors” (2004) 30 Journal of Medical Ethics 463-69, 465-467.

28 http://lawcommission.justice.gov.uk/docs/cp217_offences_against_the_person.pdf accessed 12 December 2014.

29 Horder Jeremy, “Rethinking Non-Fatal Offences against the Person” (1994) 14 Oxford Journal of Legal Studies 335-51.

30 This view is reflected elsewhere: for example, see Jefferson Michael, “Offences against the Person: Into the Twenty-First Century” (2012) 76 Journal of Criminal Law 472-92, 478-479.

31 Brown (n 4) 248 (Lord Lowry).

32 S 47 of the 1861 Act: it is an offence to commit an assault or battery occasioning actual bodily harm. ABH is harm which is not so trivial as to be wholly insignificant: R. v. Chan-Fook (n 19) 694 (Hobhouse LJ). For example, the Crown Prosecution Service’s charging standards advise that ABH includes injuries involving significant medical intervention, hospital procedures or stitches: https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard#a15 accessed 12 December 2014.

33 Brown (n 4) 248 (Lord Lowry). However, note comments of the Law Commission in Consultation Paper no 139 that perhaps consent should also extend to ABH.

34 Brown (n 4).

35 Brown (n 4) 266 (Lord Mustill).

36 Tolmie Julia, “Consent to Harmful Assaults: The Case for Moving Away from Category-Based Decision Making” [2012] Criminal Law Review 656-71, 657.

37 [2005] 1 WLR 910.

38 Ibid. § 11.

39 Tolmie Julia (n 36) 663.

40 For discussion, see Tolmie Julia (n 36) 660-661.

41 Ibid. 660.

42 As proposed by Tolmie Julia (n 36).

43 R. v. Adesanya, The Times, 16-17 July 1974. See also Poulter Sebastian, “Foreign Customs and the English Criminal Law” (1975) 24 International and Comparative Law Quarterly 136-40.

44 See Gilbert H. (n 18) 285-286.

45 Feinberg Joel, The Moral Limits of the Criminal Law (Vols. 1 - 4) (Oxford University Press 1984) 87 and Roberts Paul, “The Philosophical Foundations of Consent in the Criminal Law” (1997) 17 Oxford Journal of Legal Studies 389-414.

46 Baker Dennis, “The Moral Limits of Consent as a Defense in the Criminal Law” (2009) 12 New Criminal Law Review 93-121.

47 Parents (and those charged with parental responsibility) who physically correct their children have a defence of lawful chastisement to any charge of battery: Children Act 2004, s 58. This defence is not operative where chastisement results in ABH or GBH.

48 Children and Young Persons Act 1933, s 50. The doctrine of doli incapax, which imposed a presumption that a child aged between 10 and 14 was incapable of committing a crime, was abolished by Crime and Disorder Act 1998, s 34 (this abolition was confirmed by the House of Lords in R. v. JTB [2009] UKHL 20).

49 See below for the reports on these two fields.

50 Bainham Andrew and Gilmore Stephen, Children: The Modern Law (Jordan 2013) 217.

51 For an overall approach to religion and children in English law, see Taylor Rachel, “Parental Responsibility and Religion” in Probert Rebecca, Gilmore Stephen and Herring Jonathan (eds), Responsible Parents & Parental Responsibility (Hart 2009) and Langlaude Sylvie, “Parental Disputes, Religious Upbringing and Welfare in English Law and the ECHR” (2014) 9 Religion and Human Rights 1-30.

52 Re J (A Minor) (n 2) 685 (Wall J).

53 Taylor Rachel (n 51) 128-129.

54 [2011] EWHC 3737 (Fam) [85].

55 For example in Re P (A Child) (Residence Order: Restriction Order) [1999] 2 FLR 573 (CA), Orthodox Jewish parents were unable to care for their daughter and she developed a strong attachment for her non-practising Roman Catholic foster parents of eight years. On the parents’ application for the child to be returned to them, the court said that no one would wish to deprive her of her Jewish heritage, but there were unusual circumstances, her religious and cultural heritage could not be the overwhelming factor, it could not displace other weighty welfare factors and her residence would not be changed.

56 Re J (A Minor) (n 5) 575 (Thorpe LJ).

57 Re A (Care Proceedings: Religious Upbringing) [2010] EWHC 2503 (Fam) [73].

58 For example, see T v. S (Wardship) [2011] EWHC 1608 (Fam) for a case of medically indicated circumcision.

59 Re J (A Minor) (n 2) 688 (Wall J).

60 Ibid. 690.

61 Ibid. 682.

62 [2001] 3 FCR 648 (Fam) 660 (Wilson J).

63 See above (n 6).

64 (n 6) [17] (Baron J).

65 In any case, parents are not bound by a pre-birth agreement: Re W (A Minor) (Residence Order) [1992] 2 FLR 332 (CA).

66 Re J (A Minor) (n 5) 577 (Butler-Sloss).

67 (n 6).

68 (n 2) 679 (Wall J).

69 Ibid. 700.

70 Ibid. 698.

71 Ibid. 688.

72 [2004] EWHC 1282.

73 S (Children) [2004] EWCA Civ 1257.

74 (n 6). This was a case about whether oral contraceptives could be given to underage girls without the knowledge of their parents.

75 (n 2) 693 (Wall J).

76 Ibid. 679.

77 Re J (A Minor) (n 5) 577 (Butler-Sloss).

78 (n 6) [83] (Baron J).

79 (n 11).

80 Ibid. [60] (Munby J).

81 Ibid. [69].

82 Ibid. [72].

83 Ibid. [72-73].

84 Section 1 (5) of the Children and Adoption Act 2002 was repealed in respect of England through the Children and Families Act 2014 but the change has not yet come into force.

85 Sections 2 (5) and (6) and section 33 (3) of the 1989 Act.

86 [2010] EWHC 2503 (Fam).

87 [2009] EWCA Civ 205.

88 E.g. see Re R (A Minor) (Blood Transfusion) [1993] 2 FLR 757 (Fam); Re S (A Minor) (Medical Treatment) [1993] 1 FLR 376 (Fam); Re O (A Minor) (Medical Treatment) [1993] 2 FLR 149 (Fam).

89 R (Williamson) v. Secretary of State for Education and Employment [2005] UKHL 15.

90 See Re C (Welfare of the Child: Immunisation) [2003] 2 FLR 1095 (CA); Diekema Douglas S, “Parental Refusals of Medical Treatment: The Harm Principle as Threshold for State Intervention” (2004) 25 Theoretical Medicine and Bioethics 243-64.

91 McHale Jean and Fox Marie, Health Care Law: Text, Cases and Materials (2nd ed, Sweet & Maxwell 2007) 988-92.

92 The BMA is the doctors’ regulatory body and its guidance is often produced in response to requests from doctors, as in the case of circumcision. Its guidance is at least partly designed to protect doctors from litigation. The GMC is the body which regulates doctors and has the power to suspend or strike off doctors who breach its guidance.

93 See, for instance, the emphasis placed on GMC Guidance in framing the legal duty of confidentiality in W v. Egdell [1990] 1 All ER 835 (CA).

94 BMA, The Law and Ethics of Male Circumcision: Guidance for Doctors (June 2006).

95 Ibid. § 4.

96 BMA, Female Genital Mutilation: Caring for Patients and Safeguarding Children (July 2011) § 2.1.

97 Fox Marie and Thomson Michael (n 26); Davis Denna S., “Male and Female Genital Alteration: A Collision Course with the Law” (2000) 11 Health Matrix 487-570.

98 B and G (Children) (No 2) (n 11) [59-60] (Munby J).

99 Ibid. [72]. For a criticism of this reasoning see Earp Brian, “On the Supposed Distinction Between Culture and Religion: A Brief Comment on Sir James Munby’s Decision In The Matter of B And G (Children)” Practical Ethics http://blog.practicalethics.ox.ac.uk/2015/02/on-the-supposed-distinction-between-culture-and-religion-a-comment-onsir-james-munbys-decision-in-the-matter-of-b-and-g-children accessed 2 February 2015.

100 BMA (n 94) § 4.5.

101 GMC, Guidance for Doctors Who Are Asked to Circumcise Male Children (September 1997) (withdrawn 2007).

102 GMC, Personal Beliefs and Medical Practice (March 2013) § 22.

103 Shaw David, “Cutting Through Red Tape: Non-Therapeutic Circumcision and Unethical Guidelines” (2009) 11 Clinical Ethics 181-6.

104 BMA (n 94) § 4.1.

105 Fox Marie and Thomson Michael (n 27).

106 BMA (n 94) § 4.3.

107 Ibid.

108 (n 11).

109 Centers for Disease Control and Prevention, Recommendations for Providers Counseling Male Patients and Parents Regarding Elective Male Circumcision and the Prevention of HIV Infection, STIs, and Other Health Outcomes (2014): www.cdc.gov/hiv/policies/pdf/MCPublicCommentNotice.pdf accessed 1 February 2015.

110 See, for instance Earp Brian, “Do the Benefits of Male Circumcision Outweigh the Risks? A Critique of the Proposed CDC Guidelines” (2015) Frontiers in Pediatrics (forthcoming).

111 Fox Marie and Thomson Michael, “HIV/AIDS and Circumcision: Lost in Translation” (2010) 36 Journal of Medical Ethics 798-801; Fox Marie and Thomson Michael “The New Politics of Male Circumcision: HIV/AIDS, Health Law and Social Justice” (2012) 32 Legal Studies 255-81.

112 BMA (n 94) § 4.2.2.

113 Ibid.

114 Ibid. § 4.3.

115 Ibid. § 4.3.1.

116 Ibid. § 4.4.

117 GMC (n 102) § 18, 20 (emphasis added).

118 Ibid. § 20.

119 BMA (n 94) § 4.2.1.

120 Ibid. § 4.3.

121 Fox Marie and Thomson Michael, “Older Minors and Circumcision: Questioning the Limits of Religious Actions” (2008) 9 Medical Law International 283-311; Elliston Sarah, The Best Interests of the Child in Health Law (Routledge 2010) 98.

122 A BMJ Clinical Review of male circumcision concluded that (i) absolute indications for male circumcision are rare and include Phimosis secondary to Balanitis Xerotica Obliterans and recurrent Balanoposthitis, both of which affect about 2% of children (ii) There are many relative indications to circumcise but the evidence needs to be carefully appraised (iii) Complications of circumcision are well documented and can be drastic: Malone Padraig and Steinbrecher Henrik “Medical Aspects of Male Circumcision” (2007) 335 British Medical Journal 1206-9.

123 Gairdner Douglas, “The Fate of the Foreskin: A Study of Circumcision” (1949) 2 British Medical Journal 1433-37.

124 Rickwood A.M.K. and Walker Jenny, “Is Phimosis Overdiagnosed in Boys and Are Too Many Circumcisions Performed in Consequence?” (1989) 71 Annals of the Royal College of Surgeons of England 275-77; Fox Marie and Thomson Michael, “Foreskin is a Feminist Issue” (2009) 24 Australian Feminist Studies 195-210.

125 See BME Health Forum, Non-clinical Male Circumcision Services in Kensington & Chelsea and Westminster: An Equality Impact Assessment (July 2009) http://www.bmehf.org.uk/files/7713/6536/5068/Circumcision_InWhoseCare.pdf accessed 11 February 2015.

126 Abbott S. and Shahriar S., “An NHS Religious and Cultural Male Circumcision Service: Service Users’ Views and Experiences” (2007) 80 Community Post 20-3.

127 BME Health Forum (n 125).

128 Butler C. R and Clarke S., “Is Infant Male Circumcision an Abuse of the Rights of the Child? Yes” (2007) 335 British Medical Journal 1180.

129 BME Health Forum (n 125) 5.

130 Eg in 2012an inquest found that an infant boy - Amitai Moshe - had died of natural causes when he was declared dead 8 days after collapsing 35minutes after a religious circumcision performed at a London synagogue. See Beckford Martin, “Police Investigate Baby’s Death after Circumcision” The Telegraph (16 February 2007) and Rosen Robyn, “Brit Not to Blame in Baby Death” Jewish Chronicle (10 September 2010). In 2012 a one month old baby bled to death less than two days after he was circumcised following acute hemorrhage, leading to a finding of accidental death, “Queen’s Park baby bled to death two days after being circumcised” Kilburn Times (22 June 2012). Particular concerns have been expressed about the Orthodox Jewish ritual of metzitzah b’peh in which the mohel sucks the bleeding wound. This method has been linked to disease transmission and death: Fogg Ally, “Male Circumcision: Let There Be No More Tragedies like Baby Goodluck” The Guardian (17 December 2012).

131 Sheikh Azziz, “Should Muslims Have Faith-Based Health Services?” (2007) 334 British Medical Journal 75.

132 Paranthaman Karthikeyan, Bagaria Jayshree and O’Moore Éamann, “The Need for Commissioning Circumcision Services for Non-Therapeutic Indications in the NHS: Lessons from an Incident Investigation in Oxford” (2011) 33 Journal of Public Health 280-83.

133 Ibid. 283.

134 BME Health Forum (n 125) 5-6.

135 Ibid. 6.

136 Butler and Clarke (n 128).

137 BMA (n 94) § 4.3.

138 BMA, Female Genital Mutilation (n 96) § 3.7.

139 Such severe complications, although difficult to assess with precision, are very rare: see Weiss H. A. et al, “Complications of Circumcision in Male Neonates, Infants and Children: A Systematic Review” (2010) 10 BMC Urology 2.

140 In the UK, see Iqbal v Irfan [1994] CLY 1642 (CC); B (A Child) v Southern Hospital NHS Trust [2003] 3 QR 9 (CC). Comparable cases from other common law jurisdictions include, in the US, Doe v Raezer 664 A. 2d 102 (Pa. Super. Ct 1995); Felice v Valeylab, Inc., 520 So. 2d 920 (La. Ct. App. 1987), and in Australia, St Margaret’s Hospital for Women (Sydney) v McKibbin (Australian Torts Reports 1987).

141 Dowling Nicola, “Circumcision Doctor in GMC Investigation to Quit NHS” BBC News (17 November 2013) https://www.bbc.com/news/health-24961405 accessed 2 February 2015. See Parathaman (n 132).

142 “Grace Adeleye Guilty of Killing Baby in Botched Circumcision” BBC News (14 December 2012): https://www.bbc.com/news/uk-england-manchester-20733674 accessed 2 February 2015.

143 Kasprzak Emma, “Make Home Circumcisions Illegal” BBC News (14 December 2012): https://www.bbc.com/news/uk-england-20527625 accessed 2 February 2015.

144 BMA (n 94) § 4.8.

145 Shaw (n 103) 185.

146 GMC (n 102) § 11 and 12.

147 BMA (n 94) § 4.8.

148 Contrast, for instance, the position in Norway or the Netherlands discussed in this volume.

Auteurs

Professor of Socio-Legal Studies, Birmingham Law School, University of Birmingham.

Lecturer in Law, Liverpool Law School, University of Liverpool.

Lecturer, School of Law, Queen’s University Belfast.

© Presses universitaires de Strasbourg, 2016

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