In a recent case (05/04/16) in Exeter before Mrs Justice Roberts the court ruled that circumcision was not in the child’s best interest.
In particular Mr Gordon Muir (Consultant Urologist) was an ‘impressive witness’, 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.
The full decision:
Mrs Justice Roberts noted that the starting point is the children’s 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, in addition to s1(5). Her ladyship reviewed the Court of Appeal decision in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision)  2 FLR 678, which was upheld on appeal by Thorpe LJ reported sub nom Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) at  1 FLR 571. The court also considered Re S (Specific Issue Order: Religion: Circumcision)  EWHC 1282 (Fam),  1 FLR 236 and the more recent decision in Re B and G (Children)(No 2)  EWFC 3, where The President was considering FGM and also considered circumcision, concluding that ‘reasonable’ parenting is treated as permitting male circumcision.
Expert evidence was given by three individuals:
(1) Professor Abdel Haleem prepared an expert religious assessment of the Islamic religious basis for circumcision of male children. (para 58-61)
(2) Dr Naeem Ahmad (Consultant Paediatrician) who set out the risks associated with circumcision (para 64), and was of the view the risks are low level. The potential benefits are set out at para 65.
(3) Mr Gordon Muir (Consultant Urologist), an ‘impressive witness’, was of the view that he ‘would not be able to make a convincing argument for circumcision for these boys on medical grounds.’ (para 68) 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. (para 73)
After analysing the evidence and arguments for and against circumcision (para 128-141), Mrs Justice Roberts concluded that it was a ‘finely balanced decision’ but one in respect of which the court had reached a clear conclusion. Thus:
“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.”
F’s application for the children to be circumcised was dismissed. A declaratory recital was set out in the order stating that in in Her Ladyship’s view 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.
End Male Genital Mutilation.