Circumcision & parental wishes

DLA Piper today reported on a decision of the England and Wales Court of Appeal, concerning the disparate wishes of the father and mother as to circumcision of a boy aged about 6 years.

In SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 , the Court was required to review a mother’s request to allow her and the child to remain in England, rather than return to Malaysia. It seemed likely that in Malaysia the child’s father, who had adopted the Islam faith, would have sought to have him circumcised.

The Court held that the circumcision, should it occur, would not involve an infringement of the appellant’s Convention rights.

Quoting from the reasons of Moore-Bick LJ:

I find it difficult to see how C’s circumcision would involve any infringement of the appellant’s Convention rights, so the question has to be considered only from the perspective of C. Male circumcision is a widespread religious and cultural practice which has ancient origins. It is usually, though not invariably, carried out at a very young age when the child is unable to understand what is involved or to express any view about it. Although invasive in nature and not commanding universal approval, it is regarded as an acceptable practice among communities of all kinds, provided it is carried out under appropriate conditions. These may include appropriate medical attention and the loving support of parents and close family members. It cannot be compared to other cultural or religious practices, such as female genital mutilation, which involve a far more serious violation of the physical integrity of the body and an expression of subservience (see K v Secretary of State for the Home Department, Fornah v Secretary of State for the Home Department [2006] UKHL 46[2007] 1 A.C. 412, paragraph 93 per Baroness Hale).

It is not necessary for the purposes of this appeal to decide whether circumcision may under certain circumstances involve an infringement of the child’s rights under article 3 or 8 of the Convention. The tribunal’s findings make it clear that in this case C would have the positive emotional support of his father and that he would be conforming to the broad expectations of the culture and society in which he would grow up. It is likely that that would be regarded as a significant factor by the courts of this country, if he were being brought up here: see Re U (A child) (Court of Appeal, 25th November 1999, unreported). There is no reason to think that he would not continue to receive loving care and support from the appellant, despite her opposition to the procedure itself.