Sentenza 25 novembre 1999

Corte d’Appello. Divisione Civile. Sentenza 25 novembre 1999: “Re J (child’s religious upbringing and circumcision)”

FAMILY COURT REPORTS, Volume 1: Pages 307-314 [2000].

COURT OF APPEAL, CIVIL DIVISION
DAME ELIZABETH BUTLER-SLOSS P, SCHLIEMANN AND THORPE, LJ – 24, 25 NOVEMBER 1999

(Omissis)

The English mother, who was a non-practising Christian, met the father, a non-practising Muslim of Turkish origin, whilst on holiday in Turkey in 1992. They married in Turkey later that year and subsequently returned to England. Their son, J, was born in March 1994 but the parents separated when he was two and a half years old. Thereafter J was brought up by the mother in an essentially secular household and his only contact with Islam was through his father, who, like the mother, did not have any Muslim friends, or mix is Muslim circles. However, when J was five years old the father applied for specific issue order under Section 8 of the Children Act 1989 that J be circumcised. The father said that whilst pregnant the mother had agreed that any male child would be circumcised. The mother opposed the father’s application, which was also opposed by the Official Solicitor acting as J’s guardian ad litem. The judge held, inter alia, that although J was born a Muslim his upbringing was going to be essentially secular; that circumcision was an effectively irreversible surgical intervention which had no medical basis in J’s case; that the mother who shared parental responsibility for J with the father but cared for him on a day-to-day basis, opposed circumcision; and that on the facts it was not in J’s best interest to be circumcised. The father appealed with leave to the Court of Appeal contending, inter alia, that the judge confused the child’s religion with the child’s religious upbringing.

Held – (1) Section 2(7)1 of the Children Act 1989 did not enable a parent to arrange male circumcision on a child without the consent of the other parent sharing parental responsibility. Furthermore, since the operation of circumcision was of considerable consequence and irreversible any disagreement between the holders of parental responsibility should be referred to the court for determination. Each case would depend on its particular facts.
(2) A child’s perception of his or her religion generally depended on involvement in worship and teaching within his family from which developed the emotional, intellectual, psychological and spiritual sense of belonging to a religious faith. So for all practical purposes, the courts had been right to focus upon religious upbringing. There was no need, in the context of the present case to do more than be aware of the facts and then decide what weight to give them. The judge had not given inappropriate weight to any of the facts he had to consider and the appeal would be dismissed.

Appeal

The father appealed from the decision of Wall J (|1999| 2 FCR 345) whereby he refused the father’s application for a specific issue order under s 8 of the Children Act 1989 that his five-year-old son be circumcised. The facts are set forth out in the judgement of Thorpe LJ.

Lindsey Kushner QC and Richard Humphrey (instructed by Metcalfe Wright & Piatr) for the father.
David Harris QC and Helen Matsk (instructed by Berry & Berry, Cocker, Smith & Co) for the mother.
Michael Nichols (instructed by the Official Solicitor) as guardian ad litem.

1. DAME ELIZABETH BUTLER-SLOSS P. I will ask Thorpe LJ to give the first judgment.

2. THORPE LJ. On 23 April 1999 Wall J gave a reserved judgment refusing a father’s application for a specific issue order that his five-year-old so be circumcised (see | 1999 | 2 FCR 345). No earlier application raising this issue is known and accordingly, he gave permission to appeal to enable the father to bring his case to this court.

3. The judge’s factual summary could not be bettered. What follows is all extracted from his judgment (at 347, 348, 349). I quote.
“The father is 27. He is Turkish by birth and upbringing, and retains this Turkish nationality, although he is permanently resident in the United Kingdom and also has a British passport. He is a Muslim, although, as he freely accepts, he does not actively observe many of the tenets of his faith. The mother is 29. She is English, and apart from a short period around the time of her marriage to the father, when she lived with him in Turkey, she has lived throughout her life in England. She is notionally a Christian and a member of the Church of England but, like the father, she is non-practising. The parents met whilst the mother was on holiday in Turkey in the summer of 1992. Later that year she returned to Turkey, and she and the father were married in Turkey on 18 November 1992. It was a first marriage for both of them. . .The father says … that whilst the mother was pregnant with J she gave her agreement that any male child would be circumcised. I accept that evidence. Following the parents’ return to England from Turkey in February 1993 the marriage, despite the birth of J in March 1994, did not endure, and they separated on 29 September 1996, when J was aged two and a half. J is five and attending a local state primary school. He is being brought up in an essentially secular household. The only contact he has with Islam is through his father. The mother has no Muslim friends and no connections with any member of the Muslim community. The father, likewise, does not appear to have Muslim friends or mix in Muslim circles.”

4. Against that factual background, the judge then posed the question, what is J’s religion? He answered it thus, adopting a a submission made by the guardian ad litem, the Official Solicitor (at 349). I quote:
… In English law, therefore,[J] would seem to be being brought up as a “non-practising Christian” in accordance with the convictions of his mother with whom he lives and as a “non-practising Muslim” when he stays with his father. He therefore has a mixed heritage and an essentially secular lifestyle. He does not have a settled religious faith.

5. The judge turned to decide, first, a substantial issue as to whether the mother should be required to bring J us as a Muslim: an issue which is no longer live in this court since both parties accept the judge’s pragmatic resolution under which the father is free during periods of contact to deal with this aspect in his own way.

6. The judge’s approach to the dispute over circumcision was characteristically thorough. He considered the lawfulness of ritual male circumcision, concluding that it was lawful for two parties jointly exercising parental responsibility to arrange the ritual circumcision of their male child.

7. The judge then recorded medical attitudes to ritual circumcision., having heard evidence from a consultant paediatrician and having read the GMC and BMA guidelines supplied by the Official Solicitor. He concluded that current mainstream medical opinion requires both parent’s consent and particularly, maternal consent when the father lacks parental responsibility. Additionally, he recorded in the consultant’s report that circumcision was not medically indicated for J since he did not suffer from any of the three medical conditions that can make circumcision either necessary or advisable. He also accepted the consultant’s advice that-
The procedure is not pain free and there are potential risks both physical and psychological which may be small but which are nonetheless definite…. (See [1999] 2 FCR 345 at 361.)

8. The judge’s summary of the submission of the parties is full and in many ways favourable to the father. I need quote only one sentence (at 362):
`By comparison with what I have to say was the mother’s pallid and unconvincing statement of her religious beliefs, the father’s passionate plea for J to be given his proper identity as a Muslim and for him to be thereby enabled to identify fully with his father was impressive.’

9. In an important section, the judge considered the likely effects of J of being circumcised. There, he made these significant findings (at 365):
In Turkish society, a Muslim male child’s peers will all be circumcised: in the circles in which J will grow up, he is likely to be in a small minority, and he will not have the reassurance that all his contemporaries have been through – or will go through – the same experience. The incident I have described also makes it clear to me that the mother, as J’s primary carer, would find it extremely difficult to present the question of circumcision to J in a positive light, and unlike ritual circumcision occurring in the context of a Muslim family, where the event would be one of celebration and fulfilment, J’s circumcision would be likely to be surrounded by tension and stress, even though the mother was able to agree with the father’s counsel in cross-examination that she would, of course, care for J after the operation, and would have no difficulty changing dressings. In my judgment, the strained relationship between the parents, and the fact that as a circumcised child J would be unlike most of his peers, increases the risk that J will suffer adverse psychological effects from being circumcised.

10. Against that background Wall J stated his conclusions, marshalling them by reference to the statutory checklist in 1(3) of the Children Act 1989. However, he preceded that exercise with this concise passage (at 365):
The major benefit is that he will thereby be firmly identified with his father, and confirmed in the eyes of Islam as a Muslim. However, his circumcision would not be part of a family celebration, and he would not thereafter be brought up in a Muslim family environment.
`The disadvantages are that despite the father’s passionate defence of the procedure, J may be traumatised by it; he will, moreover, be living in the household of his mother, who disagrees with the procedure, and will find great difficulty in presenting it to J in a positive light.’

11. Finally, in refusing the application the judge stressed that his conclusion was finely balanced and depended on the facts as he had found them. He summarized the factors which had influenced his conclusion in the following four numbered paragraphs (at 367-368):
(1) Although born a Muslim, it is clear to me that J is going to have an essentially secular upbringing in England. He is not going to mix in Muslim circles, and his main contact with Muslims and the Muslim ethos will be his contact with his father. J is therefore not going to grow up in an environment in which circumcision is a part of family life; or in which circumcision will be in conformity with the religion practised by his primary carer; or in which his peers have all been circumcised and for him not to be so would render him either unusual or an outsider. To the contrary, circumcision in the circles in which J is likely to move will be the exception rather than the rule.
(2) Circumcision is an effectively irreversible surgical intervention which has no medical basis in J’s case. It is likely to be painful and carries with it small but definable physical and psychological risks. For it to be ordered there would accordingly have to be clear benefits to J which would demonstrate that circumcision was in his interests notwithstanding the risks. The principal benefits put forward are J’s identification as a Muslim and the strengthening of his bond with his father. The strength of each is substantially weakened, in my judgment, by the facts of J’s life-style and his likely upbringing. As I have already made clear, he is not going to be brought up as a Muslim child, and the strength of his bond with his father – viewed from his perspective rather than the father’s – is unlikely to be weakened if he is not circumcised unless the father chooses to allow the absence of circumcision to weaken it.
(3) J is in the middle of a hostile battle between his parents over contact. He is to that extent a vulnerable child. The operation and the period leading up to it are likely to be highly stressful for the mother, who would find it difficult to explain to J why it was being undertaken and would have grave difficulty presenting it to J in a positive light. Furthermore, J is of an age and understanding to feel pain and discomfort without at the same time being fully able to understand why the operation was being carried out.
(4) J’s mother, who not only shares parental responsibility for him with his father but cares for him on a day-to-day basis and is currently the most important person in his life, is opposed to his circumcision, and there is a rational basis for her opposition. It is a strong thing to impose a medically unnecessary surgical intervention on a residential parent who is opposed to it. In my judgment, this should only be done if the evidence shows that J’s welfare requires him to be circumcised. For the reasons I have given, I do not think that the evidence overall shows that it is in J’s interests to be circumcised.

12. By way of postscript, the judge dealt with art 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) (Rome, 4 Novmber 1950, TS-7 (1953); Cmd 8969) and with Art 24.3 of the United Nations Convention on the Rights of the Child (New York, 20 November 1989: TS 44 (1992); Cm 1576). The judge correctly held that the father’s right to manifest his religion had to be balanced against the welfare of the child and the rights of the mother. That holding has not been challenged in the course of this appeal.

13. I have summarized the judgment in this important case at length and have cited extensive passages since I accept the submission of Mr. Harris, QC that it is impregnable.

14. In presenting the father’s appeal, Miss Kushner QC faced an uphill struggle with some fortitude. Her principal complaint was that the judge confused the child’s religion with the child’s religious upbringing. As the child of a Muslim father, J arrived in this world a Muslim. His family, during the first two years of his life, were practicing Muslims to a slight degree and the separation of his parents could not terminate his religion, particularly in the absence of any active step by his mother so to do.

15. That contention seems to me, at best, to be theoretically correct. For what it is worth, it weighs very light in the scale that the judge had to balance to determine whether the relief sought would advance J’s welfare. Some faiths recognize their religion as a birthright derived from either the child’s mother or the child’s father. Some recognize religion by some ceremony of induction or initiation, but 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. So far, for all practical purposes, the courts have been right to focus upon religious upbringing and it is not surprise to me that there is no reported case focusing on a child’s religion, as Miss Kushner defines it.

16. Miss Kushner also submitted to that in a number of respects the judge had underestimated the weight of points that told for her client or over estimated the weight of points that told for the mother. It is unnecessary to particularize. These were all fact dependent issues and none was a point of principle. It is impossible to demonstrate that Wall J erred on any issue of fact or in weighing the discretionary balance.

17. Miss Kushner further submitted that any considerations against circumcision were either transient or, if not transient, speculative. That submission seems to disregard the realities of child development. Fear, pain, despair or a sense of betrayal may all be transient in the temporal sense but still inflict emotional and psychological trauma that will burden the child for life.

18. Miss Kushner finally accused the judge of setting a general standard that hes denied her client success in this application and which would make future applications unlikely to succeed. She rests this submission on a single paragraph where the judge said (at 368):
`I repeat that my decision in this case turns on its particular facts. I do not think it can be said that the court would not, in any circumstances, order a child to be circumcised. The example which was put in argument was that of a Jewish mother and an agnostic father with a number of sons, all of whom, by agreement, had been circumcised as infants in accordance with Jewish laws; the parents then have another son who is born after they have separated; the mother wishes him to be circumcised like his brothers; the father, for no good reason, refuses his agreement. In circumstances such as these, it seems to me that the court would be likely to grant the mother a specific issue order.’

19. It is immediately obvious to me that the paragraph does not begin to justify the charge. It merely emphasizes that each case must turn on its particular facts. I would not wish to be taken as laying down any more general guidance than the judge. The only certainty is that the social attitudes to male circumcision will remain extremely fluid. The only generalization I would feel confident to express, is that, in those communities where it is the practice to carry out circumcision in a male child within days of birth, there is much less likelihood of forensic dispute. Many of the issues in the present appeal could not have developed but for the practise of the father’s community to defer circumcision to the age of about seven.

20. The only point of principle that this appeal decides is to indorse the judge’s conclusion that s 2(7) of the 1989 Act does not enable a parent to arrange circumcision without the consent of the other parent. Section 2(7) provides:
`Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to effect the operation of any enactment which requires the consent of more than one person affecting the child.’

21. Mr Nicholls, for the Official Solicitor, submitted and the judge accepted that the operation of circumcision is of considerable consequence and irreversible. It must, therefore, join the exceptional categories where disagreement between holders of parental responsibility must be submitted to the court for determination. He has renewed that submission in this court. No one has opposed it and I would uphold it.

22. For these reasons, I would dismiss this appeal.

23. SHIEMANN L.J. I agree with the judgment that has just been delivered.

24. The question before the judge, faced with conflicting parental views, was whether to authorize the infliction of pain, the permanent loss of foreskin, and the exposure to the small risk of serious physical and psychological damage.

25. The object of this procedure was a child too young to give consent. Miss Kushner criticized the judge for mixing up the answers to what she maintained were two separate questions: What is the child’s religion and, with what religious practices has the child been brought up?

26. She submitted that the child was a Muslim and the judge failed to give enough weight to what she described as `this fact’. The formulation of the first question bristles with conceptual and philosophical difficulties. However, it seems to me there was no need, in the context of the present case, to do more than be aware of the facts of which the judge was aware and then decide what weight to give them. The fact that the child is recognized as a Muslim under Muslim religious law was not and is not in issue. Nor is the fact that he was not brought up in a fully observant Muslim household.

27. It is clear that adherents of Islam would regard him as a fellow Muslim and that his father so regards him. There is no reason to suppose that the child himself at present perceives of himself as a Muslim or as belonging to any faith grouping. Nor is there any reason to suppose that, apart from the father, those by whom he is surrounded regard him as a Muslim or as the member of any other faith.

28. All of these facts were clear to the judge. He rightly regarded them as relevant to the questions he had to decide. I see no reason for holding that he gave inappropriate weight to any of them.

29. I agree with that the appeal should be dismissed.

30. DAME ELIZABETH BUTLER-SLOSS P. I agree with the judgment of Thorpe LJ and that this appeal should be dismissed. I add a comment on one aspect only. The Official Solicitor recommended to Wall J that where parents sharing responsibility were in disagreement over the circumcision of a male child, that issue should be referred to the court for determination. The judge accepted that submission and I entirely agree with him and the observations made by Thorpe LJ in his judgment.

31. There is in my view, a small group of important decision made on behalf of a child which in the absence of agreement of those with parental responsibility ought not to be carried out or arranged without the specific approval of the court. Sterilisation is one example. The change of a child’s surname is another. Some of the examples, including the change of a child’s surname, are based upon statute (see s 13(1) of the 1989 act).

32. The issue of circumcision has not, to my knowledge, previously been considered by this court but in my view it comes within that group. The decision to circumcise a child on grounds other than medical necessity is a very important one: the operation is irreversible, and should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child. This requirement for a determination by the court should also apply to a local authority with parental responsibility under a care order.

33. The appeal is dismissed.

Appeal dismissed

Jane Maynard Barrister