THE CIRCUMCISION REFERENCE LIBRARY


JOURNAL OF CIVIL LIBERTIES [U.K.], Volume 5, Number 3: Pages 320-337.



MALE CIRCUMCISION AFTER THE HUMAN RIGHTS ACT 1998

Peter W. Edge*


Introduction

The circumcision of male infants, once regarded as relatively uncontroversial, has become a focus for medical and legal debate involving both significant support and pressure groups,1 and a rapidly growing body of medical and legal literature.2 This paper considers the legality of infant circumcision in English law, both in the context of established doctrines of family and criminal law, and under the Human Rights Act. A number of assumptions underpin this paper, which need to be outlined before moving on to discussion of the substantive English law.

Firstly, that specificity, including specificity in nomenclature, assists analysis. Nomenclature remains contentious in this area, in part due to petitio principii, and in part due to a desire to use a general term encompassing procedures carried out upon the genitals of both males and females. It is extremely difficult to identify common procedures between the genders,3 however, because they are carried out on the genitals.4 Some writers have sought to identify equivalent procedures by recourse to hypotheticals, but even these are flawed. Bashir, for instance, argues that "[t]here are several forms of [female genital mutilation] which may vary in severity but always result in irreversible damage to the clitoris and the consequent loss of tactile sensation and ability to achieve orgasm. [It] would only be similar to male circumcision if the penis were amputated".5 The impact of such an amputation on potential fertility without medical intervention would seem greater than in even the mast extensive procedure carried out on females, while placing the ability to achieve orgasm solely in the penis may over-simplify some male sexualities. Even if an anatomical equivalence could be identified, the gendered context of the different procedures carried out on males, subincision and superincision are uncommon in the English jurisdiction and "removal of the foreskin or prepuce"6 is generally equated with circumcision.7 That procedure, and that procedure only, is the subject matter of this paper.

Secondly, that any religious motivation behind the procedure needs to be engaged with. A common theme in the broader literature is to refer to genital procedures upon female children as "customary"8 or traditional, with "no basis whatsoever in any religion".9 This can include, as part of a broader counter to justifications for the procedures, rejecting sincere religious arguments as inauthentic either on the basis that they are not a true representation of the religious system being discussed, effectively heretical, or that if they are a true representation, the system itself is unauthentic because it acts "as an instrument of fear oppression and exploitation".10 Both strategies profoundly misunderstand the positions of religious interests in a pluralist society - the State does not have the capacity to decide what the 'true' form of a particular religion is, or proceed on the basis that the substantive content of a particular religious system excludes it from the category of religion. It is more honest and respectful of religious difference, albeit uncomfortable for a liberal analyst, to conclude that a particular religious practice should be suppressed. The discussion that follows proceeds on the basis that circumcision is capable of raising religious interests.11

Thirdly, that infants are in a different position from adults where circumcision is concerned. The English legal order distinguishes between the rights of adults and the rights of children over their own bodies, for instance in relation to tattooing.12 Adults responsible for their own well-being can make decisions even over radical bodily change such as gender reassignment surgery.13 while in the last resort the courts can exercise authority to override the evaluation of a child and compel them to undergo, or abstain from, bodily change. This sharp difference in approach is due to a judgment that children lack the experience and capacity to make some decisions in a fully autonomous and informed way. A consequence of this is that the courts can be required to determine the best interests of the child in a way which does not arise for competent adults. As well as looking to capacity, there is an argument that some changes to a child's body are essentially irreversible, and result in an imposition on the future adult the child will become.14 Although this argument can be overstated, it is an important one, and another reason for distinguishing between adults and children. Additionally, this paper restricts discussion to infants, rather than emcompass older children, whose increasing autonomy may involve their exercise of contemporaneous religious and other rights.15

Bearing these three principles in mind, the next section discusses the English law relating to the removal of the foreskin from infants and young children.

The English Law

General criminal offences of main, wounding and grievous bodily harm clearly prohibit such serious surgery taking place without the consent of the individual, or their parents.16 In some circumstances, however, even an operating consent will not suffice to exclude the operation of the criminal law.17 Lord Templeman assumed in Brown that circumcision was not prohibited in the criminal law, but this was uncritical obiter dicta.18 Later the Law Commission indicated that "male circumcision is lawful under English common law",19 but recommended that the lawfulness of male circumcision on infants and children in accordance with the Jewish and Muslim religions should be put beyond doubt.20 In its 1996 guidance to doctors, the BMA noted that religiously motivated circumcision was assumed to be lawful, and that this assumption had never been challenged.21 The BMA indicated that an adult who later objected to having the procedure would have no recourse against a competent circumcision, so long as parental consent had been obtained.22 Parental consent was a key concern in such cases:

"The BMA strongly recommends that either the written consent of both parents, or of the person with parental responsibility be obtained for circumcision . . . Doctors should be aware of potential difficulties if both parents do not follow the same cultural tradition. A case raised with the BMA concerned a GP who circumcised, without any enquiry, a baby unknown to him but who parents were, in fact, unmarried and estranged. The child's father had taken the baby without the mother's permission, fully aware that the procedure would be completely contrary to her wishes and that he had no legal right to consent. The mother made a formal complaint about the doctor concerned."23

A conflict between a Muslim father, seeking circumcision of his five year old son, and a non-Muslim mother opposed to such circumcision, formed the basis for Re J,24 the only decision dealing with religiously motivated circumcision in the English courts. Before hearing the case, which was a hearing on a specific issue order for circumcision, Wall J had already identified it as raising points of general interest and likely to go to appeal. His extensive consideration of the issues was later endorsed by the Court of Appeal as "impregnable",25 and merits discussion at length.

In relation to the foundations identified earlier, Wall J's judgment is a strong one. Firstly, early in his judgment Wall J specifically identifies the procedure to be carried out for religious purposes, rather than to treat a medical condition,26 but performed by a qualified medical practitioner using a general anaesthetic.27 It may be therefore, that this specificity excludes traditions which do not make use of pain-killing techniques, or where the procedure is carried out by religious rather than medical specialists. He also distinguishes the procedure from illegal procedures carried out on female children,28 and embeds the case in the male gender, for instance by the use he makes of the linkage between the father and his son.29 Secondly, Wall J explicitly recognises the religious motivation of the father, even though he identified him as someone who did not practise his religion, or mix in Muslim circles.30 In may be that this recognition was assisted by the existence of a corpus of Islamic law,31 but Wall avoids identifying this corpus with the beliefs of the father, concentrating on the latter.32 Thirdly, the entire case is predicated upon the need for the court to assess the best interests of the child where the parents are in conflict.

Turning to the substance of the decision, it may usefully be divided into three separate findings -- firstly that circumcision of children for religious purposes was potentially lawful; secondly, that it could be authorised by the parents operating in concert without a detailed analysis of best interests; and thirdly, that, having been called upon to determine the best interests of this particular child because of parental conflict, the court considered that circumcision would not be in the best interests, and so should not be carried out.

On the first finding, if Wall J had concluded that religiously motivated circumcision could never be lawful, this would have been conclusive to resolve the issue before him, and thus his finding on possible lawfulness constitutes part of the ratio decidendi of this case. This key part of the decision was very brief, and is based primarily on an uncritical acceptance of the Law Commission report noted above.33

On the second finding, a technical reading of the judgment could conclude that, as the parents in the case were not concurring, his further statement that, as the parents could combine together to authorise such circumcision was obiter dicta. Similarly, his suggestion that because of the irrevocable nature of circumcision where the parents were in dispute, or a local authority had parental responsibility for the child, the matter should be referred to the court for resolution was not essential to the decision.34 The issue of who can consent for the child leads Wall J to an unusual position. Moving smoothly from a situation posited by the medical profession where the mother had parental responsibility, but the father did not, Wall inferred a maternal veto, albeit one which can be overridden.35 This does not appear based on a sound consideration of the issues, so it is perhaps fortunate that this concept does not appear to have significantly affected the judgment.

On the third finding, having determined that he was required to determine the best interests of the particular child, Wall J found that a review of medical opinion suggested a lack of consensus on whether circumcision was a health benefit or a detriment,36 and he preferred to highlight social factors.37 The father's case for circumcision was primarily that of identity -- circumcision would give the child his proper identity as a Muslim, and reinforce his relationship with his father.38 The mother's case was that the child did not have a Muslim identity, and that the procedure carried small but definite medical and psychological risks.39 In finding for the mother, Wall J was particularly influenced by a number of factors -- the child's essentially secular upbringing, making his circumcision exceptional rather than necessary to fit in with family and peers; the irreversible nature of the procedure; the small but definite physical and psychological risks; the youth of the child, making him able to experience the discomfort of the procedure without appreciating its purpose; and the opposition of the residential parent to the procedure.40 Wall J acknowledged that, in some cases, the courts would probably order circumcision against the wishes of one parent in the best interest of the child. From the example he gives, the social context seems pivotal to the issue -- a child whose family or peers are circumcised is more likely to be circumcised.

Wall J briefly considers the possible impact of the European Convention on Human Rights upon incorporation through the Human Rights Act. The discussion is restricted to the lawfulness of restricting circumcision in fractured families, where parental interests clash, rather than considering where allowing circumcision per se constitutes a violation of the Convention.41

In the Court of Appeal,42 the father's arguments in favour of the circumcision of the child were that Wall J had erred in focussing on the child's religious upbringing, which was non-Islamic, rather than on the child's religion, which under Islamic law was Muslim;43 that too much weight was given to the mother's arguments against circumcision, and too little to the father's arguments in favour, particularly on medical issues;44 and that the court had set too hard a burden on contested circumcisions.45 Given that the appeal was brought by the father seeking circumcision, it is unsurprising that the essential lawfulness of circumcision was not challenged. All the submissions were rejected very briefly in the leading judgment by Thorpe, L.J., who also noted that these cases could be avoided if the father's community practised circumcision on very young infants rather than on older children,46 a point which had already been picked up by some Muslims.47 The Court as a whole chose to endorse an element of the judgment which was not, however; contested at appellate level. The point is made most clearly in the judgment of Butler-Sloss P who referred to:

"a small group of important decisions … which, in the absence of agreement of those with parental reponsibility, ought not to be carried out or arranged by a one-parent carer although she has parental responsibility … Such a decision ought not to be made without the specific approval of the court. Sterilisation is an example … [circumcision] is irreversible, and should only be carried out when the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interest of the child"48

Re J in Broader Contexts

Although Re J dealt with a very specific issue, it represents the confluence of two broader bodies of law -- the criminal law relating to offences against the person, and the family law relating to exercise of parental responsibility over infants. As this paper suggest below, this confluence produces some important tensions. Additionally, the placing of Re J in both bodies of law provides a basis for critique.

As discussed above, there have been a number of assertions that circumcision is potentially lawful, given the presence of suitable consent. The issue of consent for infants is turned to below. It may be argued, however, that the level of physical change caused by circumcision cannot be consented to on non-therapeutic grounds, either by the individual or, more relevantly, by a parent on behalf of an infant. This would have the consequence of bringing circumcision with in the ambit of offences against the person, including the special offence under the Children and Young Persons Act 1933 s. 1(1). The court could not authorise a procedure which constituted a criminal offence, so Re J includes a finding that it is possible to consent to circumcision. In doing so, neither court considered the important case of Adesanya.49 In that case a Yoruban was convicted of assault occasioning actual bodily harm. She had used a razor blade to produce scarification on the cheeks of her fourteen and nine year old sons, in accordance with the practices of her community. Initially, the case seems to have strong implications for circumcision -- in both cases "the singular cut both entails an alliance…, and erects a boundary. It enacts both identity and difference".50

The trial judge distinguished between this form of scarification and circumcision by reference to the potential for serious harm, for instance injury to the eye, if the child is moved during the procedure. This does not seem a strong ground circumcision, as circumcision carries with it a number of health risks ranging from minor, transient damage with accompanying pain and suffering, through a range of complications,51 to accidental amputation of the penis. In an important commentary, Poulter suggested three further grounds for justifying Adesanya which, if a sound distinction between scarification and circumcision, may support the lawfulness of the latter.52 Firstly, that a minor who consents to such an act may come to regret it in later life. If the irrevocable nature of scarification explains why it cannot be consented to by, or presumbably for, children, it may be argued that circumcision is similarly irrevocable.53 Secondly, that the decline in observance of the practice in the traditional territory of the Yoruban people requires less respect for the practice in England. It is arguable that Poulter's approach consistently emphasises ethnicity over individual religious rights,54 and that a closer focus on individual rights would place less emphasis on the number of practitioners of a particular religious manifestation, whether in the jurisdiction or globally. There is, in any case, some evidence for suggesting that some members of groups traditionally practicing circumcision almost universally have discontinued the procedure.55 Thirdly, that certain explicit exceptions granted by the legislature. No such exception exists for religiously motivated circucision.

It is perhaps possible to distinguish between scarification and circumcision on grounds of utility and visibility.56 It seems true that facial scarification has an element of general visibility in the public domain which is lacking in relation to circumcision, and it could be argued that the intimate nature of circumcision makes it less pervasive in the male's social life. This would receive some support from the restriction upon tattooing of minors.57 A number of better developed arguments have been put forward suggesting that religious circumcision confers a number of incidental health and physical benefits.58 The significance of these arguments is not that they establish the procedure as a medical one, but that they serve to offset any health or secular disbenefit produced by the religiously motivated procedure. If the courts were prepared to accept at least some of these arguments they may provide a sound basis for distinguishing circumcision from scarification, which it has not been argued confers any special health benefits. Although accepting that arguments over such benefits were currently taking place,59 neither Wall J nor the BMA have been prepared to accept the arguments as proven. Accordingly, this does not seem a good ground to distinguish Adesayna. Identifying an inconsistency does not, however, mean that Re J was wrong, It may indicate, instead, that Adesanya was mistaken, and that parents can carry out facial scarification. If this is the case, a fuller consideration of the issues raised would have been appropriate, even in the contexts of a family law case, as opposed to a criminal prosecution.

Turning to family law, in Re J, it was accepted at an early stage in the judgment that parents could agree together to consent to circumcision, but that consent where this consensus was absent would require the intervention of the court.60 Normally, an individual with parental responsibility may act alone in discharging that responsibility,61 so the requirement for consensus might be seen as a limit on this particular form of physical change. Although placed in the same category as sterilisation, the cases indicate that non-therapeutic sterilisation always requires the consent of the court regardless of parental agreement. Thus, this restriction is less than that on sterilisation,62 perhaps due to the lesser impact of the procedure, the absence of eugenic concerns or, to be pragmatic, the considerably larger number of circumcisions the courts would be called upon to consider. The scope of this restriction is unclear -- must the courts be called upon in the absence of agreement between two individuals with parental responsibility, or only in the presence of disagreement. If we give a primary role to consent, as would follow from criminal law, we might argue that only a dyadic self-contradiction by the decision makers requires a court intervention. If we give a primary role to the quality of the decision making process by which the interests of the child are to be advanced, however, we might argue that the consent of two individuals closely entwined with the interests of the child are needed for such an irrevocable step. Where more than one individual has parental responsibility, either formulation produces the same result, but the former would seem more apt to allow an individual with sole parental responsibility to consent without approval of the court. Similarly, by analogy with the sterilisation cases, circumcision for therapeutic reasons may not fall within this restriction.63

An obvious question is whether this consent is always operative, or must meet particular criteria. In particular, whose interests are to be taken into account when deciding whether to consent, and how are those interests to be evaluated?

In our scenario there seems to be at least four individuals or groups which might be seen as benefiting from the circumcision: the infant, their parents, their religious community, or their deity or deities. Potential benefits for the infant have been discussed above. The parents might be considered to benefit through satisfaction of their religious duties -- a point stressed in relation to the Islamic father in Re J. The religious community might be seen to benefit by the continuation of a strong marker of group identity. Finally, the deity or deities for when the circumcision is being carried out might be seen to benefit from this obediance. Serious evidential problems exist in ascertaining benefits to a religious community. Arguments based on the interests of deities are unlikely to be deployed in the plural legal system, no matter how strong a role they may place in the life of the decision makers.64 In any case, it seems that despite the possible existence of some parent-centred parental rights,65 parental rights exist primarily to benefit the child,66 and those acting for the child can only give their consent provided that the intervention is for the benefit of the child,"67 although Bridge has argued compellingly that the courts allow doctors to impose a certain level of risk on a child "for the purposes of conceding to the religious wishes [of the parents]".68 For instance, if parents agreed together for their infant to be circumcised because they wished to watch a circumcision, or to win a bet, this would seem insufficient. Those with parental responsibility "have power to consent to non-therapeutic procedures insofar as they are for the benefit of the child", or benefit others without causing more than a minimal detriment to the child.69

Secondly, the courts have not accepted that the parents' assessment of the child's best interests must be approved uncritically when considering physical change. Allowing a degree of latitude to parents, particularly over mundane, routine matters,70 by requiring them to act to benefit the child, even though the courts might have come to a different conclusion as to their best interests, the courts have indicated that the parents' perceptions can be wrong.71 In relation to sterilisation, for instance, in Re D (Sterilisation)72 the court exercised its wardship power to prohibit sterilisation of an eleven year old, despite the wishes of her widowed mother.73

Thus, while requiring parental agreement constitutes a limit on the practice, the uncritical endorsement of a joint parental decision to circumcise seems to give an unusual degree of latitude to parents considering this procedure. It may be, however, that the court in Re J did not mean to suggest that parental decision making could take into account issues other than the best interest of the child, or was immune from challenge before the courts, simply that consent to circumcision was a parental responsibility which could be exercised. Alternatively, the court may have recognised that allowing parents to decide this matter for themselves largely takes the legal system out of the equation. As Brazier notes in a different context:

"who will ever know what happened? Only if some interested third party intervenes will the matter reach the light of day in time to prevent the procedure going ahead"74

The Impact of the Human Rights Act

It has been suggested that a number of international instruments, including the United Nations Convention on the Rights of the Child and the Convention against Torture, prohibit non-therapeutic circumcision.75 In particular, if such circumcision is contrary to the European Convention on Human Rights, the coming into force of the Human Rights Act could result in the extension of the assault provisions in the Offences Against the Person Act, and the Children and Young Persons Act 1933 to cover circumcision of infants with parental consent.76

The most potent challenge to circumcision would come from a finding that it consituted torture, inhuman, or degrading treatment contrary to Article 3. Unlike other convention rights, a restriction on Article 3 cannot be explicitly justified by reference to social needs or the rights and interests of others.77 Feldman has argued that, if inhuman treatment can occur in the absence of degrading treatment, then circumcision falls within the ambit of Article 3 as inhuman treatment.78 There are a number of grey areas in relation to Article 3 which may serve to exclude many circumcisions from its ambit. Firstly, it has been suggested that Article 3 may only limit State action, rather than requiring the State to intervene between private individuals.79 In the recent case of A v United Kingdom,80 however, the court found that "[c]hildren and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity".81 Secondly, the role of consent in Article 3 has not been made explicit. The cases concerning corporal punishment of children, however, suggest that parental consent to the treatment of a child will not exclude the operation of Article 3,82 although an individual may receive non-consensual treatment to preserve their physical and mental health.83 Thirdly, to constitute inhuman treatment, ill treatment must meet a certain threshold of severity. Although the cases indicate that the level of physical change involved in circumcision would meet this threshold,84 the nature and context of the complained behaviour is relevant.85 Finally, as Feldman points out, there is some difficulty in arguing that circumcision is degrading treatment, in the sense that it humiliates or debases.86 If younger children are less likely to be debased or humiliated by conduct, as Costello-Roberts v UK87 suggests, it may be particularly difficult to argue that an infant is degraded by circumcision. If inhuman treatment is an aggravated form of degrading treatment, this may prevent recourse to Article 3.

These uncertainties, together with a reluctance by the Court and Commission to deal with applications under Article 3, make it more likely that circumcision will be resolved by reference to some other Convention right, probably Article 8.88 Article 8 provides a right to respect for private and family life, which may be interfered with only in accordance with the law, and when necessary in a democratic society for national security, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of the rights and freedoms of others.89 The right to private life includes rights to physical and moral integrity of the person, prohibiting minor infringments on physical autonomy such as the taking of blood and urine samples.90 This can require the state to provide deterrence, through criminal sanctions, for third party violations by, for instance, sexual assault by a private individual.91 It would seem unlikely that parental authorisation ipso facto excludes an infringement from the scope of Article 8, as this would allow parents to authorise themselves to commit, for instance, sexual assaults upon their children. While a consent to medical treatment for a child unable to consent would be covered by the same principles discussed above, it seems that non-therapeutic circumcision would fail to be justified by reference to interests other than those of the child.

Of the acceptable grounds, the most likely seems to be the rights and interests of others -- in particular, of the parents and the religious community of which they are a part. A parental wish to have their son circumcised might fall within Article 9 as a manifestation of religious belief, although Feldman disagrees with this approach as "the beliefs in question are those of the parents, and one person's religious freedom should not be used in order to justify an interference with another person's right to bodily integrity.92 Although unsupported by the Article 9 jurisprudence, this seems a potentially valuable limit to Article 9 rights. It is more likely that the rights identified would themselves emerge from Article 8 -- the rights of the child's parents to respect for their family life. Family life carries with it the idea of parental authority over children, for instance in relation to medical treatment,93 which can clash with a child's individual autonomy rights.94 The Convention organs may well be reluctant to require, as opposed to allow, the State to make decisions for the family.95

As a final point, it may be argued that a range of procedures carried out on females are unlawful by statute,96 and that allowing circumcision of males is to discriminate between the genders by offering differential levels of protection.97 There are some specific problems with this approach notably the restriction on competent females under the Act, wheras competent males can opt to be circumcised, so that the reach of the Act can be seen as discrimination, rather than its exclusion. More fundamentally, it was suggested above that the location of the procedures makes it extremely difficult to find a comparator which will allow us to judge whether discrimination has occurred. For this reason, non-discrimination does not seem a strong basis for challenging the existing law, particularly given the status of non-discrimination as a complementary, rather than free standing right under the Convention.

Conclusions

The emphasis on joint parental consent allowing circumcision places the involvement of the courts in circumcision clearly within the fractured family, where parental views as to the child's best interests differ. The courts thus appear as intervening only to resolve a dispute between parties intimately affected by their decision. The courts side with one parent or another -- they do not intervene against the adult members of the family in order to further their own vision of best practice in child rearing. Although the courts are placed clearly within a context of competing demands, the strengths and weaknesses of Re J flow from just this context. Although somewhat trite in any legal discussion, an element of particular interest in Re J is the variety of competitions which emerge.

The most obvious is between those who argue for a prohibition on circumcision, and those who would oppose such a prohibition as a form of non-plural imperialism. As Chessler observes "[a]ny prohibibition of male circumcision will be debated by cultural relativists and universalists".98 The courts have attempted to avoid this debate by entering into discussion of circumcision where the child is already between traditions -- those of the parent seeking circumcision, and the parent opposing circumcision. Although only partly successful even here, the tensions would be much more exacerbated if, for instance, they reached into an intact Muslim family to prevent the child being circumcised. A practice regarded as necessary by many members of the Islamic and Jewish communties (communties already exposed to racism, Islamaphobia and anti-Semitism) would have been shifted from a harmless cultural practice on an offence against the person. If we regard motive as irrelevant in determining child abuse,99 so as to include a parent seeking to benefit the child through application of immoderate and unreasonable chastisement,100 entire orthodox communities would be classified as committing, encouraging, or supporting "nonaccidental physical injury"101 to children. It is not impossible that the birth of an infant into such a community could require a local authority to make enquiry for their well being.102 Even a decision that the courts consent was required for every circumcision would have led to massive involvement in the religiously motivated family arrangements of a significant proportion of the United Kingdom population.

Another obvious tension, visible in both commentary and the decisions of the Courts, is how to categorise the particular procedure in question -- is it an essentially harmless procedure, or an unnecessarily risky operation which, even in the absence of complications, has long term adverse effects? In Re J the court dealt with competing medical evidence by allowing different arguments to, in essence, neutralise one another, allowing the judges to focus on the social context of the child . Presumably, whatever the difference of opinion within the medical profession, there is an accurate characterisation of the medical impact of circumcision? In the long term, this attempt to avoid the medical debate seems neither in the best interests of the child, nor intellectually sustainable.

The tensions in how we characterise circumcision might be seen as, ultimately external to the legal process, to be resolved in due course by medical knowledge. A further, fundamental, tension is, however, much more lawyerly. How are we to characterise the recipient of circumcision? Are they a hyper-autonomous individual, a holder of rights against the world, or are they an integral, organic part of broader communities, both religious and familial? This is not a manifestion of the argument as to whether circumcising children for community reasons treats them as means not ends. We can treat the child as the end, but construct circumcision quite differently if we see it as something whereby "his culture, religion and family is enhanced",103 as opposed to something carried out upon him for the benefit of others.

It is a manifestation of this tension which produces the final, and perhaps most interesting conflict with Re J. As argued above, it is necessary to find that circumcision with parental consent is not criminal assault before it is possible to enter into discussions based on the best interests of the child. The courts could not avoid becoming entangled with both criminal law and family law issues. These distinct areas of law, however, do not necessarily carry the same timbre as to the characterisation of the individual. It may be argued that criminal law represents almost an extreme form of individualism within the English legal system, while family law has long accommodated a more embedded construction of the individual. These competing models cannot, in this scenario, remain distinct. The introduction of the Human Rights Act 1998 may provide a route by which these different models of the individual compete more explicitly.


*LLB,Phl) (Canrah), Reader in Law and Religion, Oxford Brookes University. Some of the ideas in this paper were explored at Religion, spirituality, corporal change and the legal order, ( Centre for Legal Research and Policy Studies Oxford Brookes, 19 February 2000) Many thanks to participants at that seminar. Thanks also to Anna Grear and Judith Hendricks, both of Brookes, and Joan Loughen, at Lancashire Law School.

1 See further Milos, M F and Macris D "Circumcision: A medical or a human rights issue?", (1992) 37(2) Journal of Nurse-Midwifery 2.
2 For a recent review, see Boyle G J et al, "Circumcision of healthy boys: Criminal assault?" (2000) 7 Journal of Law and Medicine 301. For a useful review of the issues, see Queensland Law Reform Commission, Circumcision of male infants research paper, (Brisbane: QLRC, 1993).
3 Bridge, C, "Religion, culture and conviction - the medical treatment of children". (1999) 11 Child and Family Law Quarterly 1 at 6. Cf. Richards, D, "Male circumcision: Medical or ritual?" (1996) 3 Journal of Law and Medicine 371.
4 Smith, R C " Female circumcision: Bringing women's perspectives into the international debate", (1992) 65 Southern California Law Review 2449 at fn. 7.
5 Bashir, M. "Female genital mutilation in the US: An examination of criminal and asylum law", (1996) 4 American Journal of Gender and Law at 422.
6 Brigman, W E. "Circumcision as child abuse. The legal and constitutional issues", (1984-5) 2 Journal of Family Law 337 at 338.
7 En Law Commission Consultation Paper no. 139, Consent in the Criminal Law (London: HMSO, 1995) para. 9.1.
8 Law Commission, op cit., at para. 9.1.
9 Minority Rights Group, "Female circumcision, excision and infibulation: the facts and proposals for change", (MRG Report no 47) at 7. This is a notable distinction between procedures carried out upon male and female children in Mackay, R.D. "Is female circumcision unlawful?" . (1983) Criminal Law Review 777.
10 "What's culture got to do with it: Excising the harmful tradition of female circumcision". [1993] 106 Harvard Law Review 1944 at 1951-2.
11 Much of the current movement against circumcision emerges from a context of routine, non-religiously motivated circumcision, but is unsympathetic to arguments based on religious interests. For a fuller identification of different religious interests, see Edge, P W "Religious rights and choice under the European Convention of Human Rights", (2000) Web Journal of Current Legal Issues.
12 Tattooing of Minors Act 1969; see also Burrell v Hamner [1967] Crim L.R. 169.
13 See Pace, "Sexual identity and the criminal law", [1981] Criminal Law Review 317; Corbett v Corbett [1971] P 83.
14 This can be seen in the argument that all non-essential treatments that can be deferred should be deferred until the child is old enough to make an effective consent on their own behalf - see the United States American Academy of Pediatrics Committee on Bioethics (1995) Pediatrics 314-7.
15 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
16 See MacKay, op. cit.
17 See further Kell, "Social disability and the law of consent". (1994) 14 Oxford Journal of Legal Studies [21: Bamforth, 'Sado-maschism and consent", [1994] Criminal Law Review 661; Bamforth, "Sexual privacy and the ECHR", (1997) 51 Cambridge Law Journal 480.
18 Brown [1993] 2 WLR 536.
19 Law Commission, op cit., at para. 9.2.
20 Ibid, at 9.27.
21 BMA, Circumcision of male infants--guidance for doctors, (London, BMA, 1996).
22 Ibid.
23 Ibid.
24 Re J [1999] 2 FLR 678. See Barley-Harris, R. "Casenote: Re J". (1999) Family Law 543.
25 Re J. [2000] 1 FLR 307, per Thorpe, L J. at 313A.
26 Re J, at 679D.
27 The role of the medical practitioner in meeting religious need through medical skills has led to the involvement of the National Health Service hospitals in providing religiously motivated circumcisions -- see Bodi, F "just a little snip …". (2000) Guardian, May 21.
28 Re J, At 689B-D.
29 Ibid, 694C-E, 695C.
30 But contrast with the characterization of the mother's beliefs -- Ibid. 694F.
31 Ibid, 681F, 682F-H, 683A.
32 Ibid, at 682G.
33 Ibid, at 690.
34 Ibid, at 702.
35 Ibid, at 691.
36 Ibid, at 693.
37 The American Academy of Pediatrics has similarly emphasised social factors when considering ethical issues relating to non-therapeutic circumcision. -- see American Academy of Pediatrics Task Force on Circumcision, "Circumcision Policy Statement", (1999) 103(3) Pediatrics 606.
38 Re J, at 694.
39 Ibid, at 695.
40 Ibid, at 700.
41 Ibid, at 701.
42 Re J [2000] 1 FRC 307.
43 Ibid, at 312A-E.
44 Ibid, at 312E-G.
45 Ibid, at 312G-313C.
46 Ibid, at 313A-C.
47 See "Circumcision and the parents", (1999) Q News 8.
48 Re J,at 314E-H. The possibility of a maternal neto was not discussed at appellate level.
49 Adesanya (1974) Times 16,17 July, discussed in Law Commission, op. cit, para. 9.14.
50 Geller, J, "Idols, fetishes, and foreskins: the other of religion", (1997) 27 Religion 117 at 120.
51 See Williams, N, "Complications of Circumcision", (1993) 80 British Journal of Surgery 1231.
52 Poulter, S, "Foreign customs and the English criminal law". (1975) 24 International and Comparative Law Quarterly 136.
53 See Queensland Law Reform Commission, op cit.
54 See Edge, PW "New Ethnicities, Paganism and English Law" (1999) 7 Pomegranate 47.
55 See Goldman, R, Questioning circumcision: A Jewish perspective, (Vanguard Publications: 1998).
56 See Price, C. Male circumcision: an ethical and legal affront", (1997) 127 Bulletin of Medical Ethics 13.
57 Bridge, C.P. op cit, pr. 6.
58 See Law Commission, op cit, at para. 9.2.
59 See more fully American Academy of Pediatrics Task Force on Circumcision, op. cit; Boyle et al, op cit.
60 There is some ambiguity in the judgements as whether an individual with sole parental responsibility can exercise that responsibility to circumcise the child, or must come in the court for permission.
61 Children Act 1989 s. 2(7).
62 Bridge, C "Casenote: Re J", (2000) Family Law 246 at 247.
63 See Brazier, M, Medicine, patients and the law, (London: Penguin, 1992) at 349.
64 It might, however, be argued that the child will benefit psychologically from a belief that the procedure has benefited either their community or their deities -- consider Skegg, P D G, "Consent to medical procedures on minors", (1973) 36 Modern Law Review 370 at 377-9.
65 Cf. Dwyer, J G "Parents religion and children's welfare: Debunking the doctrine of parents' rights", (1994) California Law Review 371.
66 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
67 Department of Health. Local research ethics committee, (London: Department of Health, 1991) at 91.
68 Bridge, op cit, at 13-14.
69 Bonham, A and Cretney; S Children -- the modern law, (London: Family Law, 1993} at 253.
70 Bridge, op. cit, at 14.
71 See further Bridge, C "Parental powers and the medical treatment of children", in C. Bridge (ed.) Family law towards the Millenium: Essays for P.M. Bromley, (London: Butterworths, 1997).
72 In Re D (Sterilisation) [1976] Fam. 185.
73 On the sterilisation cases see generally Bainham and Cretney, op cit, at 255-9.
74 Brazier, op cit, at 154.
75 See, for instance, Boyle et al, op cit.
76 Human Rights Act 1998 s. 8.
77 See Harris, J J et al. Law of the European Convention on Human Rights, (London: Butterworths, 1995) at 55-56.
78 Feldman, D Civil liberties and human rights in England and Wales, (Oxford, Clarendon Press, 1991) at 159-60. Professor Feldman also made this argument to the Law Commission. see Law Commission, op. rin an para. 9.25.
79 Harris et al, op cit, at 57-58.
80 A v United Kingdom [1998] 2 FLR 959.
81 Ibid. at para. 72.
82 Harris et al, op cit, at 97. A v United Kingdom, ibid.
83 Herzeglody v Austria, A 244, para. 82 (1993).
84 Harris et al, op cit, at 62-5.
85 Tyrer v United Kingdom, A26 (1978); Smith and Grady v United Kingdom (1999) HUDOC. REF1276.
86 Harris et al, 80-81.
87 Costello-Roberts v UK, A.247-C (1993).
88 See Harris et al, op cit, at 84.
89 ECHR Article 8(1), (2).
90 Harris et al, op cit, at 308.
91 X and Y v Netherlands, A 91 (1985).
92 Feldman, op cit, at 159.
93 See R v United Kingdom, A 121-c (1987); Nielsen v Denmark, A 144 (1988).
94 Harris et al, op cit, at 317. 95 Smith L, "Children, parents, and the European Human Rights Convention", in Ecka J and Saracevic, P Parenthood in modern society: Legal and social issues in the 21st century, (London: Martinus Nijohoff, 1993) at 455, 457..
96 Prohibition of Female Circumcision Act 1985, s. 1-2. On its background see Sochatt, E A, "Agenda setting, the role of groups and the legislative process. The prohibition of female circumcision in Britain" [1998] Parliamentary Affairs 508.
97 See for instance, Boyle et al. op cit.; Richards, op cit; Povenmire R. "Do parents have the legal authority to consent to surgical amputation of normal healthy tissue from their infant children", (1998-9) 7(1) Journal of Gender, Social Policy and the Law 88; Chessler, A J "Justifying the Unjustifiable: Rite v Wrong", (1997) 45 Buffalo Law Review 355.
98 Chessler, op cit, at fn. 174.
99 Cf. Phillips, M, "Issues of ethnicity and culture" in Wilson, K and James, A (ed.), The child protection handbook, (London: Bailliete Tindall) at 120..
100 See R v Hopley (1860) 2 F&F 202.
101 Myers, J E B Legal issues in child abuse and neglect practice, (London: Sage, 1998) at 2.
102 Children Act 1989 s.42(1).
103 Bridge, op cit. (1999), at 5.

[CIRP Note: The Journal of Civil Liberties is published at Newcastle-upon-Tyne by Legal Services Unit of the University of Northumbria.]


Citation:
(File revised 29 November 2005)

Return to CIRP Library

http://www.cirp.org/library/legal/edge1/