English court on female genital mutilation and male circumcision

Why a clock? (Kikkerland Design Retro alarm clock / handout photo)

An interesting opinion, in In the Matter of B & G (Eng. & Wales Family Ct., Leeds Jan. 14, 2015). The background:

These are care proceedings in relation to two children, B, a boy, born in July 2010 and G, a girl, born in July 2011 (these are not their real initials). In terms of their ethnic origin, both the father, F, and the mother, M, come from an African country which I shall refer to as country A, though the mother was born and brought up in a Scandinavian country which I shall refer to as country S (again, these are not the real initials). The family are Muslims. The proceedings were commenced in November 2013, triggered by M's seeming abandonment of G in the street. B and G were placed in foster care the same month and have remained with the same foster carer throughout.

G was found to have what seemed to be a scar on her genitalia, and the government argued that this was evidence of "Type IV" "Female genital mutilation," under the World Health Organization classification: No part of the clitoris, the labia, or the skin surrounding the clitoris was removed, but there was some "other harmful procedure [] to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterization." The question was whether either G, or both B and G, should be permanently removed from their parents' custody because of this. (Any form of female genital mutilation is a crime in England, so long as "mutilation" is shown; the court didn't resolve what forms of Type IV procedures constitute "mutilation.")

The court concluded that there wasn't sufficient evidence of any deliberate female genital mutilation, and there was no evidence that G would be at risk of any form of such mutilation; there would thus be no basis for limiting or terminating the parents' rights on that ground. But the court also asked, more generally: Given that some of the Type IV female genital mutilation is "very much less invasive than male circumcision," what is the basis for treating male circumcision differently? Here's the court's answer, whether or not you find it persuasive (some paragraph breaks added):

These are deep waters which I hesitate to enter. I am concerned with a narrower question, namely how one accommodates the law's seemingly very different approaches to FGM and male circumcision within the provisions of section 31 of the Children Act 1989….

Section 31(2) provides as follows:

"A court may only make a care order or supervision order if it is satisfied –
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to –
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; …."

… So before the State can intervene, the local authority has to prove two things: "significant harm" attributable to parental care which is not what it would be "reasonable to expect" of a parent….

In my judgment, any form of FGM constitutes "significant harm" within the meaning of section[] 31 …. What then of male circumcision? …

Mr Hayes points to the recognition, both by Wall J, as he then was, and by the Court of Appeal in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, 693, on appeal Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision) [2000] 1 FLR 571, 573, 576, that male circumcision does involve harm, or the risk of harm. Given the comparison between what is involved in male circumcision and FGM WHO Type IV, to dispute that the more invasive procedure involves the significant harm involved in the less invasive procedure would seem almost irrational. In my judgment, if FGM Type IV amounts to significant harm, as in my judgment it does, then the same must be so of male circumcision….

Moving on to the second limb of the statutory test, Mr Hayes submits that in assessing whether the infliction of any form of FGM can ever be an aspect of "reasonable" parenting, it is vital to bear in mind that FGM involves physical harm which, it is common ground, has (except in the very narrow circumstances defined in section 1(2)(a) of the Female Genital Mutilation Act 2003, not relevant in a case such as this) no medical justification and confers no health benefits.

The fact that it may be a "cultural" practice does not make FGM reasonable; indeed, the proposition is specifically negatived by section 1(5) of the 2003 Act. And, as I have already pointed out, FGM has no religious justification. So, he submits, it can never be reasonable parenting to inflict any form of FGM on a child. I agree.

It is at this point in the analysis, as it seems to me, that the clear distinction between FGM and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms.

There are, after all, at least two important distinctions between the two. FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, "reasonable" parenting is treated as permitting male circumcision.

It's not completely clear to me exactly what the judge means by stating that female genital mutilation "has no basis in any religion." As I understand it, some forms of female genital mutilation are indeed endorsed as religiously necessary or at least advisable by some Muslim religious scholars. I take it the judge must be concluding that either majority Islamic belief doesn't support female genital mutilation, or "true" or "proper" Islamic belief doesn't support it—not a conclusion that American judges would be free to draw, I think, given the First Amendment, but presumably one that English judges are allowed to draw. (Under American law, it's not for courts to decide whether a religious claim represents the majority view of a religious group, or the proper understanding of its scriptures, though courts can of course reject religious exemption claims on other grounds, such as that the exemption would unavoidably inflict substantial harm on third parties.)

In any event, an interesting decision that I thought I'd pass along—read the whole thing if you want more than just these excerpts. Thanks to professor Howard Friedman (Religion Clause).