Why Family Law Treats Female Genital Mutilation and Circumcision Differently: An Explanation

Abstract

Family law in England and Wales draws a fundamental and categoric distinction between female genital mutilation (FGM) and male circumcision (circumcision). The former is a criminal abuse of human rights which, for the purposes of section 31 of the Children Act 1989, can never fall within the ambit of reasonable parenting. The latter is, in principle, reasonable and is therefore not in itself a basis upon which the state can seek to intervene in family life.¹ It will be argued that the reasons given for this distinction in the authorities to date (reasons based on precedent, culture/religion and health/medical issues) are problematic and are not ultimately capable of explaining the distinction satisfactorily. Nevertheless, it will be further argued that a distinction can be properly justified but only when we consider some core underlying features of family law in our contemporary democratic society and that it is only with those features in mind that the different treatment can be explained and viewed as acceptable.

1. INTRODUCTION

On 14 January 2015, Sir James Munby P handed down judgment in the leading case of Re B (Children) (Care Proceedings).² The case focused on an allegation, pursued by a local authority within care proceedings,³ that two Muslim parents had subjected their daughter to a form of female genital mutilation (FGM). Having heard expert evidence (of extremely varying quality), the court concluded that it could not make the key finding sought. Nevertheless, ‘given its obvious importance’,⁴ Sir James Munby P went on to consider the groundbreaking point—on which he had heard the argument—as to whether FGM amounts to ‘significant harm’ for the purposes of section 31 of the Children Act 1989—the threshold/core statutory provision permitting the removal of children from their parents’ care. The answer to that enquiry was that ‘any form of FGM’ constitutes such harm⁵ and that, again for the purposes of section 31 of the Children Act 1989, ‘it can never be reasonable parenting to inflict any form of FGM on a child.’⁶

Alongside this analysis of FGM, consideration was also given to the law in respect of circumcision and, again, with particular regard to section 31 of the 1989 Act. Here the court concluded that whilst circumcision (like FGM) amounts to ‘significant harm’ for the purposes of section 31, it (without more) falls within the ambit of reasonable parenting. Circumcision is not, therefore, in itself (and unlike FGM) sufficient to trigger state intervention in the form of care proceedings.⁷ As Sir James Munby P put it:

I conclude therefore that although both involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish ‘threshold’ in accordance with s31 of the Children Act 1989; male circumcision without more will not.⁸

It will be argued, that whilst the fundamental conclusion that there is a distinction to be drawn between FGM and circumcision is sustainable, the reasons given for that distinction within Re B and the authorities upon which it relies are problematic. In broad terms, those reasons are as follows: first, precedent-based arguments support the contention that there is a distinction to be drawn; secondly, issues pertaining to culture/religion allow for different treatment; and thirdly, health/medical-based arguments allow for different treatment. Sections 2–4 will address each of these areas in turn with an investigation as to whether such reasons can satisfactorily ground the distinction that family law maintains between FGM and circumcision—with the conclusion being, in each case, that they cannot. Section 5 will then endeavour to set out better reasons for understanding the different treatment and will point to the conclusion that, ultimately, it can be explained only by understanding some core underlying features of family law itself with a particular focus on what it can/cannot achieve—a point which, it will be contended, is linked to societal priorities which are at large beyond the sphere of family law but which nonetheless provide family law with its particular approach to FGM and circumcision.

In terms of contribution to the field, whilst the literature includes examples of challenges to the different treatment of the practices,⁹ it is suggested that there is a lack of sustained and detailed consideration of the reasons given for that difference in the specific context of family law and religion—with there being a particular absence of focus on the nature of family law and what that may tell us about the appropriateness or otherwise of the distinction drawn between the practices.

2. PRECEDENT

For the contention that there is ‘no equivalence’ between FGM and circumcision, Re B places reliance upon two asylum cases—K v Secretary of State for the Home Department, Fornah v Secretary of State for the Home Department and SS (Malaysia) v Secretary of State for the Home Department¹⁰—and this reliance ought to be regarded as problematic.

The only specific point that SS (Malaysia) makes on any relationship between FGM and circumcision is as follows:

It cannot be compared to other cultural or religious practices, such as female genital mutilation, which involve a far more serious violation of physical integrity of the body and an expression of subservience.¹¹

The authority for the above proposition is cited as Fornah and so SS (Malaysia) becomes vulnerable for the same reasons that will be explored in respect of that case itself. Further, Re B in fact clashes with SS (Malaysia) because it specifically negatives the analysis that FGM per se represents a greater invasion of bodily integrity than does circumcision with Re B going so far as to determine that some forms of FGM are ‘on any view much less invasive than male circumcision’¹²—and with both FGM and circumcision constituting significant harm.¹³SS (Malaysia) and Re B are also at odds because the former describes FGM as a religious practice, whereas the latter asserts it is a practice that ‘has no basis in any religion.’¹⁴ So as Re B actually departs from SS (Malaysia) on these critical points it is hard to see how SS (Malaysia) can help ground the precedent-based argument that Re B deploys to justify the distinction drawn between FGM and circumcision.

As to Fornah, neither of the linked cases concerned the welfare of boys; rather, they were both asylum appeals on the narrow question as to whether the two appellants (an Iranian woman and a Sierra Leonean girl¹⁵) fell:

(…) within the familiar definition of ‘refugee’ in article IA(2) of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (…) The only issue in each case is whether the appellant’s well-founded fear is of being persecuted ‘for reasons of … membership of a particular social group.’¹⁶

Because neither of the linked cases were about circumcision, Fornah references no detailed evidence, argument or analysis concerning the practice. Its direct/specific commentary on circumcision is contained within only three of the judgment’s 122 paragraphs¹⁷—two of those paragraphs restricting their observations on the topic to a single sentence.¹⁸ What is said about circumcision does not go directly to the ‘only issue in each case’ (ie ‘membership of a particular social group’) and ought, therefore, to be regarded as dicta.¹⁹ Whilst ‘there are obiter dicta and obiter dicta’ Fornah’s dicta ought to be regarded as falling on the non-binding or non-persuasive ‘passing remark’ side of the equation as opposed to the potentially binding or persuasive ‘considered judgment on a point fully argued’ side—in particular, because the judgment discloses no ‘purifying ordeal of skilled argument’ on the question as to whether circumcision and FGM are comparable practices.²⁰

Further, Fornah contends for there being no comparison between FGM and circumcision²¹ but without any consideration of what drawing a comparison entails. That is a gap given the abundance of authority for the proposition that, when drawing comparisons between X and Y, the attributes of them both which are said to ‘come into the frame’ are a matter of opinion, out-look and value judgment.²² This consideration is absent within Fornah and so it goes on to exclude from the analysis points of obviously arguable comparison. So, there is a fundamental point of comparison between FGM and circumcision in that both involve the non-consensual removal of children’s genital parts for non-therapeutic reasons and, therefore, a fundamental interference with the right to bodily integrity.²³ Linked to that are the other essential points: both practices involve pain²⁴ and are irreversible.²⁵ Both practices are regarded (at least by some communities) as religious obligations²⁶ and are, in any event, customs intended to mark a life-stage transition and/or an initiation.²⁷ Both practices can be driven by mutually held expectations as between the sexes that go to marriageability,²⁸ beliefs in cleanliness, and perceived aesthetics.²⁹

Bringing together many of the above points, Gollaher notes:

Like male circumcision, the cutting of girls is an expression of certain deeply held beliefs about the body, human sexuality and individual and social identity (…) the themes the Western world abhors - removing part of the genitals to reduce sexual pleasure, carving children’s bodies to conform to certain social ideals, visiting pain on helpless children - are all fully present in the history of male circumcision.³⁰

Finally here, as Re B itself states both practices involve significant harm³¹—a highly notable point of comparison from a basic child welfare perspective and also simultaneously from a legal/procedural perspective as the proof of significant harm (or its likelihood) is one of the requirements to be met to establish jurisdiction for state intervention in family life under section 31 of the Children Act 1989.

Moving on, gaining an understanding of both FGM and circumcision is a task that requires the consideration of expert opinion—an essential point recognized in Fornah given the involvement of the expert in the case to assist on the background of FGM in Sierra Leone. However, the judgment does not disclose any detailed consideration of any expert opinion on circumcision.³² Further, an expert in family proeedings must set out where there is a ‘range of opinion’³³ and so in this context, a key difficulty with Fornah arises because the case-critical opinion that FGM evidences an inferiority of women in Sierra Leone is simply not an opinion universally held amongst experts within the field and yet there is nothing in Fornah that would let us know that.³⁴

Fornah’s ‘procedures’ analysis, with its focus on the circumstances in which FGM can be carried out, conflates procedures with their setting.³⁵ After all, FGM can be carried out hygienically with anaesthetic and circumcision can be carried out unhygienically without anaesthetic.³⁶ Further, as Re B observes FGM Type Ia, whilst ‘apparently very rare, is physiologically somewhat analogous to male circumcision.’³⁷ That acceptance must also bring with it an acceptance that the procedures are comparable given that the purpose and function of the procedures is to change physiology.

That FGM can have severely harmful consequences is beyond argument³⁸ but circumcision too may have harmful, even fatal, consequences.³⁹ More fundamentally, it is not clear why the severity of harmful consequences is necessarily helpful when considering the question of reasonableness/acceptability. Repeatedly stabbing somebody in the face with a knife is a far more serious assault than punching somebody once in the face but it does not follow that the punch to the face is reasonable/acceptable conduct, less still that it is in the best interests of the victim. After all, even a de minimis assault is an assault.⁴⁰

It follows from the above that any contention that circumcision can or ought to be regarded as an acceptable practice simply because it is less harmful than FGM is a non sequitur and, consequently, unsustainable—as Steinfield says, ‘this isn’t a harm competition.’⁴¹ In any event, Re B negatives any suggestion that circumcision is a matter demanding little/no concern by concluding it amounts not only to harm but ‘significant harm’⁴² ie harm that is not ‘trivial or unimportant’⁴³ but ‘considerable, noteworthy or important.’⁴⁴ Indeed, on the issue of severity (and as already noted), Re B goes so far as to determine that some forms of FGM ‘are on any view much less invasive than male circumcision.’⁴⁵

Finally, on the ‘procedures’ analysis, if circumcision results in a diminution in sexual pleasure due to the removal of sensitive tissue and/or significant negative psychological sequelae (as evidence in the field suggests⁴⁶) then it can equally be said of circumcision that, as with FGM, its ‘effects last a life time.’⁴⁷ Further, Re B itself accepts that the ‘long-term consequences, whether physical, emotional or psychological’ of certain forms of FGM may be the same or less great than those associated with circumcision.⁴⁸

By way of ‘context’ analysis, Fornah states:

Nor can the context be compared with male circumcision. As the UNICEF Innocenti Digest, Changing a Harmful Social Convention: Female Genital Mutilation/Cutting (2005) observes:

In the case of girls and women, the phenomenon is a manifestation of deep-rooted gender inequality that assigns them an inferior position in society and has profound physical and social consequences. This is not the case for male circumcision, which may help to prevent the transmission of HIV/AIDS.⁴⁹

The three contentions that (i) FGM is a ‘manifestation of deep-rooted gender inequality’, (ii) circumcision is not such a manifestation, and (iii) circumcision has been linked to HIV/AIDS prevention are not contentions that, without more, can be said to justify the argument that there is no comparison to be made. For all we have here are the identification of three purported facts that point to a difference but where there is difference there can still be substantial comparison/similarity. More specifically on this UNICEF citation (and as already touched upon) the assertion that FGM is a manifestation of inequality and inferiority finds extensive challenge in the literature as an oversimplification, including in relation to Sierra Leone—the very country under consideration in Fornah.⁵⁰ Further, as Möller argues ‘Patriarchal oppression may make an otherwise rights-violating act even worse, but it cannot ground its wrongness.’⁵¹ In other words, irrespective of the extent to which FGM is an outworking of patriarchal oppression it is a wholly unacceptable practice with any associated intention to subjugate on the grounds of sex/gender being an ‘aggravating factor’⁵² rather than the wrong itself.

Moving on within the UNICEF citation, as with FGM, so too does circumcision have ‘profound physical and social consequences.’⁵³ Further, in jurisdictions such as our own where FGM is unlawful and circumcision lawful, circumcision itself becomes a manifestation of ‘deep-rooted gender inequality’ and itself becomes a form of—to borrow Fornah’s own phrase—‘gender-specific violence.’⁵⁴

On HIV/AIDS, it is of note that, rightly, the UNICEF material cited is in fact equivocal—circumcision ‘may’ help transmission prevention.⁵⁵ This is, therefore, not itself a wholly safe basis upon which family law can draw any firm conclusions about the reasonableness or otherwise of circumcision (as will be argued fully in Section 4).

Further again on the specifics of the UNICEF material, it contains a non-sequitur. The purported logic/reasoning of the second sentence (‘This is not the case for male circumcision (…)’) is that the HIV/AIDS point distinguishes circumcision from FGM which has been noted in the first sentence to have a number of characteristics; but the HIV/AIDS point cannot negative the contention that circumcision also shares (or can share) those aforementioned characteristics.

Finally here, it should be noted that the UNICEF material makes merely passing reference to the practice of circumcision touching upon the issue in just three of its introductory sentences in a document running to a total of 54 pages. It cannot be said to be a document that provides any substantive analysis as to the possible comparison of FGM and circumcision. It also falls foul of the analysis that only FGM can be regarded as a grave act which, as already touched upon, is an analysis specifically negatived by Re B.⁵⁶

Building on the themes of the UNICEF material, Fornah then introduces the link between FGM and the control of female sexuality⁵⁷ but here it must be recognized that circumcision has itself not been a practice untainted by endeavours to contain, constrain, oppress, and attach shame to the experience of sexual pleasure.⁵⁸

On the issue of control, Lord Bingham states in a comparable vein to Lady Hale:

The contrast with male circumcision is obvious: where performed for ritualistic rather than health reasons, male circumcision may be seen as symbolising the dominance of the male. FGM may ensure a young woman’s acceptance in Sierra Leonean society, but she is accepted on the basis of institutionalised inferiority.⁵⁹

The analysis that circumcision concerns the dominance of the male over other males is problematic for two key reasons. First, it is another oversimplification of matters relating to sex, gender and power as evidenced, in particular, by the active support from/involvement of certain women within numerous circumcision traditions/contexts—Antonelli noting, by way of stark example, that ‘Jewish women have died rather than repudiate the practice.’⁶⁰ Secondly, even if there were no oversimplification here, how could this intra-sex domination contribute to the argument that circumcision should be regarded as categorically acceptable/reasonable? Surely any suggestion that the ‘dominance’ of A over B is acceptable/reasonable simply, or even in part, because A and B are both male is a suggestion that is inherently weak and ignores the point that patriarchy can harm boys/men and not just girls/women.⁶¹ It also ignores the fact that Fornah itself rejects any suggestion, certainly in the context of persecution, that a harmful practice is somehow more tolerable if inflicted on an intra-sex basis.⁶²

Finally on the issue of patriarchy/gender inequality: when transposed into the family law analysis, the issue results in a loss of focus on the paramountcy principle/rights-based arguments. Let us, for a moment, take the patriarchy/gender inequality argument at its very highest. FGM is, in all circumstances, ‘an extreme and very cruel expression of male dominance.’⁶³ Let us say that is not, in any way, an oversimplification but how does that actually help the family court determine whether it is reasonable/in accordance with the welfare paramountcy principle to allow for a boy to be circumcised? The argument is leading to another non-sequitur: conduct X is very cruel, in particular conduct X is, for the purposes of asylum law, a very cruel form of persecution; conduct Y is not; therefore conduct Y is reasonable—this notwithstanding the fact that conduct Y could, for the purposes of family law, be any number of unreasonable acts—anything from stubbing out a cigarette on a child’s arm, to making him eat dog food, or to breaking his back in a fit of anger: the examples are limitless. In short, whilst abhorrence of FGM is wholly justified, that abhorrence tells us nothing meaningful about why circumcision is regarded as reasonable.

3. CULTURE/RELIGION

In Re B another ‘important’ distinction between FGM and circumcision is as follows, ‘FGM has no basis in any religion; male circumcision is often performed for religious reasons.’⁶⁴ This essential proposition is supplemented and contextualized by the observation that ‘large numbers of circumcisions are performed for reasons which (…) are as much to do with social, societal, cultural, customary or conventional reasons as with anything else (…)’⁶⁵ and also by the observation that ‘The fact that it may be a “cultural” practice does not make FGM reasonable.’⁶⁶ Within Re B, therefore, there appears to be a distinction drawn between religion and culture which is then accompanied by the following sub-distinctions: FGM is not religious but cultural (and in any event unreasonable) and circumcision is religious and cultural (and in any event reasonable). These interrelated contentions are problematic for five key reasons.

First, there are issues of definition. If it is to be said that there is a material distinction between culture and religion with purportedly different practices falling into one of these separate categories (or across categories) then consideration would have to be given to issues of definition—to where culture ends and religion starts (and vice versa). Yet Re B is silent on this and takes no account of the complexity of the following interrelated questions: what is ‘culture’, what is ‘religion’, and what is the relationship between ‘culture’ and ‘religion’, in particular in the context of FGM and circumcision?⁶⁷

Re B is further open to challenge here because, in overlooking definitional issues, it takes no account of the ‘trend of authority’ towards a more expansive understanding of what ‘religion’ is⁶⁸—an approach that necessarily enhances the prospect of any particular practice being regarded by the law as religious. Moreover, even where we find workable definitions of ‘culture’, it is clear that it can be hard to extract the religious from the cultural⁶⁹ with the often-overlapping nature of culture and religion having also been identified in the specific context of FGM.⁷⁰

All this points to ‘culture’ as a very broad concept/phenomenon covering an extremely wide range of human activity/conduct some of which may be religious ie ‘religio-cultural activity/conduct’ and some of which may not be ie ‘cultural-only activity/conduct.’ To some extent, Re B’s analysis accounts for the subtleties of these dynamics because it recognizes that circumcision can be both religious and cultural but its analysis is silent on the possibility of similar subtleties being at large in respect of FGM—that being classified, in essence, as a ‘cultural-only’ practice with no consideration being given as to whether that classification may be incomplete/erroneous.

The second, and closely related key reason as to why the contention that FGM ‘has no basis in any religion’ is problematic, is that the assertion reads as a statement of concluded fact and one which is made in a context in which the court had apparently heard or been presented with no expert evidence and/or argument on the point.⁷¹

Third, it is right that there is nothing in the Quran which specifically mandates the practice of FGM but that can equally be said of the Quran and circumcision—but with both practices being referred to in the hadith (reported sayings of the Prophet Muhammed).⁷² Quranic silence alone, therefore, does not allow for any credible assertion that a particular practice is unIslamic; nor, because of the hadith, can it necessarily be said that there is no authoritative textual basis for FGM within Islam. For as Esposito and Delong-Bas note, there are hadith which have been understood by some (albeit controversially) to refer to and support FGM in consequence of which: ‘[Islamic] Law schools are divided on whether FGM/FGC is permitted, obligatory, forbidden, or to be left to parental discretion.’⁷³

In any event, ‘primary text silence’, is not a fact which alone can merit the assertion that FGM ‘has no basis in any religion.’ Let us take here a very obvious example: nowhere in the Christian Bible does it say: ‘And in the summertime thou shalt have white weddings in the pretty villages of the English shires’ and yet, equally, to contend that saying ‘I do’ in precisely that context has ‘no basis in any religion’ is patently untenable. As Elias J put it in Eweida v British Airways Plc:

Accordingly, it is not necessary for a belief to be shared by others in order for it to be a religious belief, nor need a specific belief be a mandatory requirement of an established religion for it to qualify as a religious belief. A person could, for example, be part of the mainstream Christian religion but hold additional beliefs which are not widely shared by other Christians, or indeed shared at all by anyone.⁷⁴

Another aspect of the scriptural/textual issue is this: if the assertion that FGM ‘has no basis in any religion’ is underpinned by a purported lack of scriptural/textual mandate for FGM then the implication of that is that were there to be such a mandate then there would be a commonality with circumcision (mandated as it is in the Hebrew Bible⁷⁵) and further, because of that scriptural/textual mandate, there would be a capacity for FGM to be regarded as a reasonable/acceptable practice. However, a key difficulty here, for both practices, is that the law does not recognize any necessary connection between conduct being mandated (or arguably mandated) by scripture and its acceptability. For rightly the law recognizes that just because X is (or is arguably) mandated by scripture it cannot necessarily follow that X is reasonable.⁷⁶ Building on that point, it also has to be recognized that the law does not recognize any necessary connection between religion, reasonableness and a child’s best interests—which is to say that just because X is a religious practice cannot necessarily make it a practice that the law can recognize as acceptable.⁷⁷

The above analysis cuts to the core of the purported culture/religion distinction between FGM and circumcision for the following fundamental reason: if, ultimately, a religious practice can be properly deemed as unreasonable then it must follow that the religious quality of circumcision cannot, alone, be determinative of the categoric acceptability of the practice.

Fourth, the assertion that FGM ‘has no basis in any religion’ takes no account of the wealth of evidence that, for many people, FGM does have such a basis. That is clear even from material that was before the court in Re B itself—in the form of UNICEF’s Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change.⁷⁸ According to its foreword, the statistical overview ‘examines the largest ever number of nationally representative surveys from all 29 countries where FGM/C is concentrated, including 17 new surveys undertaken in the last three years.’⁷⁹ It reports that in 4 out of 14 countries (namely Mali, Eritrea, Mauritania, and Guinea) more than 50 per cent of girls/women questioned regarded FGM as a religious requirement. In 2 of the same 14 countries (namely Mauritania and Egypt) more than 50 per cent of boys/men questioned regarded FGM similarly (with 49 per cent of girls/women questioned in Egypt regarding it as a religious requirement).⁸⁰ Whilst in other countries the percentages were not as high, they were plainly of statistical relevance pointing to the notable existence of a belief in those countries that FGM is a religious requirement.

Whilst, from a religious studies perspective, it may be contended that those holding these beliefs misinterpret their tradition, a ‘perceived obligation to act in a specific way (…)’ is capable of securing protection under Article 9 of the ECHR.⁸¹ Further, as Edge has argued:

there is an important distinction between arguing that a particular Islamic community is incompatible with international human rights or the fundamental ideology of the United Kingdom State, and arguing that it is unIslamic.⁸²

Now had the Court in Re B engaged with the fact of the widespread belief evidenced by UNICEF what would the outcome have been? The court would either have had to reach a different conclusion ie determine that, in fact, FGM does have a basis in religion thereby allowing for one of its ‘important distinctions’⁸³ between FGM and circumcision to fall away; or, it would have held fast in its determination. However, in light of the fact of the widespread belief could the court have actually maintained its determination that FGM ‘has no basis in any religion’? To do so would be to conclude, essentially, that those who regard FGM as a religious requirement are wrong. That, it is argued, would be a determination which the court simply could not have made. For in doing so, it would have been impermissibly adjudicating upon the content and validity of a belief and compromising the principle of state neutrality.⁸⁴

Fifth, the assertion that FGM ‘has no basis in any religion’ is one that, without any explanation, simply assumes that FGM can be ‘de-linked’ from religion. Whilst it is arguable that there can be such a de-linking,⁸⁵ we have here only the statement of a conclusion with no preceding analysis—thereby leaving the conclusion vulnerable. Further, in respect of the attempt to distinguish FGM from circumcision, no detailed reference is made to the arguments that circumcision can be also de-linked from religion.⁸⁶ The key point here then is this: if both practices can be so de-linked then plainly another important purported distinction between them breaks down.

4. HEALTH/MEDICINE

Re B notes that ‘comparatively few male circumcisions are performed for therapeutic reasons’⁸⁷ but that ‘the justifications’ sometimes advanced for male circumcision are that it is ‘hygienic or has prophylactic benefits, for example, the belief that it reduces the incidence of penile cancer in the male, the incidence of cervical cancer in female partners and the incidence of HIV transmission.’⁸⁸ Latterly, these observations ground one of the ‘at least two important distinctions’ between FGM and circumcision namely, ‘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.’⁸⁹

Re B is correct in its necessarily pithy summation of the health/medical evidence in relation to FGM and circumcision, but does that make it right to posit the health/medical argument, for the specific purposes of family law, as one of the ‘important distinctions’ between FGM and circumcision?

First, whilst Re B correctly observes that ‘opinions are divided’⁹⁰ on circumcision, there is a clear preponderance of high-level professional opinion that points away from the conclusion that circumcision is generally beneficial. The British Medical Association, the Danish Medical Association, the Royal Dutch Medical Association, the Canadian Paediatric Society, and the Royal Australasian College of Physicians have all concluded that the purported benefits of circumcision do not outweigh its associated risks/justify the intervention in the vast majority of cases⁹¹—a point, in respect of the BMA, which underpins the essential fact of there being no policy of routine neonatal circumcision in the UK. The obvious outlier, taking the contrary view, has been the American Academy of Pediatrics but even here there has been internal inconsistency in the analysis—‘the health benefits of newborn male circumcision outweigh the risks and justify access to this procedure for families who choose it’ and yet, as the BMA notes,⁹² there is no recommendation made by the AAP for routine circumcision on health grounds. Indeed, according to the AAP, ‘Parents should weigh the health benefits and risks in light of their own religious, cultural and personal preferences, as the medical benefits alone may not outweigh these other considerations for individual families.’⁹³ So even for the AAP it is clear that, ultimately, the decisive factor in favour of circumcision may well be religious/cultural rather than health/medical-related. It is also of note that the AAP’s risk/benefit analysis has been ‘heavily criticised.’⁹⁴

Following on from the above, Re B’s observations as to the purported health benefits of circumcision are weakened by the fact that no detailed consideration is given to the potential disadvantages/risks associated with the procedure—which can be numerous, grave and even fatal.⁹⁵ Further, should it be said that that the rarity of significant complications is such that circumcision can remain categorically reasonable, it must be remembered that family law’s general approach to risk and medical certainty/uncertainty shows us (in a manifestation of ‘the precautionary principle’) that even where there is apparent medical certainty (let alone uncertainty) and even where the risk of serious harm is low, courts are ever mindful of the possibility of error and pitfall.⁹⁶

As to those conditions where circumcision may be an appropriate intervention, the medical literature points to those conditions being uncommon if not positively rare, especially in young children. It also points to circumcision being an intervention appropriate for consideration only when other, less invasive treatments, have been unsuccessful.⁹⁷

In respect of purported prophylactic benefits, Re B cites three specific examples: the reduction in the incidence of penile cancer, cervical cancer, and HIV transmission⁹⁸ but what is plain here is this: even according to the AAP, the obvious peer national medical organization with the most sympathetic view of circumcision, a boy is unlikely to get penile cancer⁹⁹ and his circumcision is unlikely to have an appreciable impact on the incidence of cervical cancer.¹⁰⁰ As to HIV prevention, it is right that there is evidence pointing to circumcision having reduced transmission in certain areas of Africa.¹⁰¹ It is hard to see, however, why that fact might make the procedure a necessary response to the welfare needs of a boy born in a country where, once of a sexually active age, he will have other less invasive options for practising safe sex readily available to him and according to his own informed choice—the British Association of Urological Surgeons noting that even the World Health Organization (which has taken a lead on reporting the case for circumcision to combat HIV transmission) ‘does not recommend routine circumcision in developed nations (…).’¹⁰²

So, at this point in the analysis, it would seem very difficult to conceive of circumstances in which the family court could actually allow for the circumcision of a boy for any of the above prophylactic reasons from which it must follow that reference to penile cancer, cervical cancer, and HIV transmission cannot feed into a sound justification for family law’s categorically different treatment of FGM and circumcision.

Reliance upon prophylactic possibilities as a reason to justify circumcision also brings with it the issue of third-party interests—ie the interests of those who might, in future, come into contact with the boy whose circumcision might be contemplated; but an analysis of how third-party interests are addressed in family law shows that they could not be regarded as determinative. First, there is the paramountcy principle within section 1 of the Children Act 1989 which makes it plain that it is ‘the child’s welfare’ which shall be the court’s ‘paramount consideration’—ie the child who is the subject of the given application before court and not others who here might be the future sexual partners of the subject child.¹⁰³ Further, it seems reasonable to assume that much, if not all, of the sexual activity in question would, in due course, be taking place between adults but under section 1 the court is concerned primarily with determining questions pertaining to ‘the upbringing of a child’ not questions pertaining to that child’s future adult life.¹⁰⁴

This analysis is supported by the law concerning incapacitous adults and whether they can be subject to medical intervention for the benefit of others—it having been stated in Re A (Male Sterilisation) that ‘Social reasons for carrying out of non-therapeutic invasive surgery is not part of the present state of the law.’¹⁰⁵ It is also supported by the law on vaccination—there being an obvious third-party benefit from such an intervention. In Re H (A Child) (Parental Responsibility: Vaccination) it was noted both at first instance and on appeal that vaccinating children is for ‘the public good’¹⁰⁶ and ‘society more generally.’¹⁰⁷ However, in both these passages and the first instance and appeal judgments taken as a whole, it is clear that the wider third-party interest of vaccination is a supplementary or a tangential ‘bolt-on’ point to the primary issue, namely whether standard childhood vaccinations are for the benefit of the subject child in question and there is no suggestion that it is the third-party benefit that makes it in the welfare interests of such a child to receive those vaccinations.¹⁰⁸

It also has to be noted that any proposition that circumcision might be reasonable in order to protect a boy’s future sexual partner ultimately brings into the frame the question as to whether and, if so, in what circumstances it could be right for A to ask/permit B to harm C for the benefit of D—where, in these circumstances, A is the parent/judge, B the circumciser, C the boy being circumcised and D the person who might be at risk of cancer/HIV. That question, in turn, brings to the fore the related concepts of self-defence and necessity, in particular in so far as they may be at large when health/medical intervention is being considered.

The leading authority here remains Re A (Children) (Conjoined Twins: Surgical Intervention)¹⁰⁹ where the Court of Appeal considered whether the conjoined twins of devout Roman Catholics (Jodie and Mary who were held to be separate persons) could be lawfully separated in circumstances where, in any event, Mary would die and Jodie could only live were that separation to take place. The appeal ‘ranged quite widely over many aspects of the interaction between the relevant principles of medical law, family law, criminal law and fundamental human rights’¹¹⁰ and, exceptionally, saw the provision of written submissions from the Archbishop of Westminster. In dismissing the appeal and allowing for the separation, the court concluded that those involved in the procedure would be able to avail themselves of the principles of self-defence and/or necessity thereby allowing for the lawfulness of Mary’s death which would inevitably flow from the separation.

The circumcision of a boy to benefit a future sexual partner would fail the tests both of quasi-self-defence and necessity as identified in Re A¹¹¹ and for comparable reasons. It would fail the former because the action of circumcision exceeds what is reasonably required for practising safe sex, with the BMA noting the obvious point that ‘some of the anticipated health benefits of male circumcision can be realised by other means—for example, condom use.’¹¹² Further, and specifically in relation to reducing the incidence of cervical cancer, the circumcision of a boy to meet that aim plainly assumes that that boy will go on to have only, or mainly, female sexual partners. Were that not the assumption there would be no rationale behind the aim and the assumption is, of course, unjustifiable. Similarly, circumcision would fail the necessity test at its very first hurdle because it cannot be said that the circumcision of a boy is, in the language of Re A, ‘needed to avoid inevitable’¹¹³ incidence of cervical cancer in female partners or the incidence of HIV transmission—the medical literature being clear that such incidences are far from an inevitable consequence of a boy not being circumcised.

The other point of real note arising from the various related legal principles considered in Re A is the reminder/clarification as to just how significant the right to bodily integrity really is—it is part of the doctrine of the sanctity of life and the right to life. Further, in respect of Jodie, who could survive, that right to bodily integrity was held in the balance in favour of the operation. That much is perhaps unsurprising but more to the point—as evidence of the centrality of the right to bodily integrity—is the fact that that right was in respect of Mary also held in the balance in favour of the operation—ie one of the reasons why the operation was permitted was because it would allow Mary her right to bodily integrity even though that would bring about her swifter death.¹¹⁴

The overall point here is not that what Re B says about the health/medical science is wrong. The point is, the science cannot, for the purposes of family law, help ground a generalized proposition that circumcision is categorically reasonable; it can merely ground the proposition that in some specific but rare circumstances it may be necessary; but in those circumstances, circumcision is no different to any other form of required medical intervention—it is simply something that is needed and in respect of which there is unlikely to be realistic argument.¹¹⁵ It is further of note here that, pursuant to section 1(2) of the Female Genital Mutilation Act 2003, interventions which would otherwise amount to an offence do not trigger liability when ‘necessary’ for a girl’s ‘physical or mental health’ or if carried out in connection with labour. So, to this extent, circumcision and FGM (or certainly interventions that would otherwise amount to an offence) are the same—they can both, in limited circumstances, be regarded as necessary.

Linked to this, is the point that (of course) there is no generalized policy of removing the body parts of children that might, in the future, succumb to or spread disease. Noting that penile cancer is, essentially, a form of skin cancer,¹¹⁶ Gollaher puts it like this, ‘A high percentage of skin cancers eventually develop on the nose (…); but this has not led physicians to recommend prophylactic rhinoplasties.’¹¹⁷

5. BETTER REASONS

A. Wider context

A starting point on the search for better reasons underpinning the distinction drawn between FGM and circumcision is identified within Re B itself with Sir James Munby P recognizing the ‘curious’ position that family law has established for itself in relation to the distinction¹¹⁸ and with his then citing the following ‘famous observation’ of Oliver Wendell Holmes Jr:

The life of the law has not been one of logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even in the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.¹¹⁹

Whilst Sir Munby James P himself does not appear to see this passage as ultimately resolving the curiosity raised, the reference helps us towards a realization that the distinction drawn between the practices is about matters more fundamental than the ‘compare and contrast’ exercise seen in the authorities to date. That is to say, the different treatment arises, not from the particulars of the purported comparisons set out within the leading authorities, but from the nature of family law in our contemporary society and, in particular, the need for pragmatism within the administration of family law. As to the specific link between pragmatism and Holmes, Posner writes:

The pragmatic approach to law was announced in the famous opening sentence of The Common Law (1881) (‘The life of the law has not been logic; it has been experience’) (…) Holmes rejected the then orthodox notion that judges could decide difficult cases by a process of or very similar to logical deduction from premises given by authoritative legal texts, or by unquestioned universal principles that inspire and subsume those texts (‘natural law’). He argued that judges in difficult cases made law with reference to the likely social and economic consequences of their decisions, and that their intuitions about those consequences, rather than the abstract moral principles and formal legal analysis deployed in conventional judicial opinions, drove legal change and had made the law what it had become.¹²⁰

With this theoretical background in mind, we turn to section 1 of the Children Act 1989 and the principle that a child’s welfare is the court’s ‘paramount consideration.’ Welfare is assessed not simply by reference to the statutory criteria of section 1(3) of the 1989 Act (the ‘welfare checklist’) but also with reference to a more fundamental understanding of what ‘welfare’ is and it is of particular note here that in the very same paragraph in Re B where Sir James Munby P cites Holmes, he also signposts us to a passage within one of his own earlier judgments addressing the interaction of family law and religion—Re G (Education: Religious Upbringing)¹²¹—a passage which sits within a wider discussion as to the meaning of ‘welfare.’¹²²

In Re G, we see the court touching upon what are five interrelated limbs which are collectively vital for an understanding of what family law is and vital, therefore, for our identifying better reasons for family law’s different treatment of FGM and circumcision. These are as follows: (i) welfare is concerned with ‘general community standards’; (ii) family law must, within certain ‘limits’, tolerate parental autonomy; (iii) save for in exceptional circumstances, there is ‘no bright-line test’ when assessing welfare; (iv) family law is concerned with social change; and (v) by way of overall conclusion, in family law ‘context is everything.’

B. General community standards

According to Re G, ‘A child’s best interests have to be assessed by reference to general community standards (…).’¹²³ With the introduction of this notion, comes the argument that what is deemed reasonable and in the best interests of a child is intimately connected to (albeit not coterminous with) what is and/or has been common, customary or conventional practice.¹²⁴ With this in mind, we can see an obvious distinction between FGM and circumcision—at least within this jurisdiction—which is this: unlike FGM, circumcision has been a practice widely familiar to this jurisdiction for centuries.

In considering this disjunct of old and new, it is instructive to consider the context in which it became possible to legislate against FGM, in particular, by looking at the passage of the Prohibition of Female Circumcision Act 1985—the predecessor to the Female Genital Mutilation Act 2003.

Writing in 1988, Sochart notes ‘It has only been in the last few years that the subject of female circumcision has begun to be discussed openly in Britain’¹²⁵ and that ‘the first step (…) which would eventually set the issue of female circumcision firmly on the British political agenda’ was Lord Kennet’s tabling of Parliamentary Questions for Written Answer in—and this is the critical point—1982.¹²⁶ This date goes to the crux of the matter—when Parliament (rightly) criminalized FGM (‘female circumcision’ as it was then known) it was tackling what it perceived to be a largely new issue in the UK—a new phenomenon.

That new phenomenon was a part of a wider set of perceived and/or actual challenges arising from post-war immigration of which Poulter, writing in 1987, notes:

While people have been coming from overseas to settle in England since time immemorial, the level of immigration from former British colonies and the New Commonwealth since 1945 has created many distinct ethnic minority communities (…) many of their customs (…) are the product of traditions and value systems in countries and communities whose economic and social structures are vastly different from those of modern Britain. The role of women and their legal status furnish just one very clear example of what may be broadly portrayed as a ‘clash of cultures’ when people from traditional rural societies in Africa or Asia settle and work in English towns and cities.¹²⁷

That what we now term as FGM was perceived as ‘other’ is very clear from the content and tone of the parliamentary debates which allowed for the passage of the Prohibition of Female Circumcision Bill 1985. For example, responding on behalf of the Government at the Third Reading in the House of Commons, Kenneth Clarke MP as Minister for Health said:

The mutilation and impairment of young girls and women have no part in our way of life.¹²⁸

Similarly, Baroness Masham of Ilton when moving the Bill at Second Reading in the House of Lords argued:

When the British public realised that young girls, adolescents and women were being mutilated and impaired because of the practice of female circumcision being undertaken in Britain there was an upsurge of revulsion and horror among many people. It must be clearly spelt out that there is no place in our society for this custom and that it is no part of our way of life (…) I hope the message will be put over to all the groups concerned that in Britain women cannot be mutilated in this way; it is just not done (…) this is not part of our British culture.¹²⁹

What is plain from the above, is that the arguments that allowed for the criminalization of FGM in 1985 were not arguments predicated simply upon health or rights-based issues—they were arguments predicated on FGM being seen as new, unknown, foreign, and ‘un-British.’ What we have with circumcision is very different—circumcision has, for a number of reasons, been a known and accepted community standard in this jurisdiction for a long time. Going back to Poulter, by 1985 there were in excess of 300,000 members of the Jewish community in Britain and over a million Muslims—communities for whom the circumcision of boys was and is entirely mainstream and expected.¹³⁰ Whilst Britain’s Muslim population has only become of particular numerical/cultural significance since 1945,¹³¹ Jewish communities settled in England following the Norman Conquest—being expelled from the country under Edward I in 1290¹³² and returning under Oliver Cromwell in 1655.¹³³ In 1667, the first reported case to make reference to circumcision acknowledged the centrality/value of the practice to the Jewish faith¹³⁴ and by the late 19th century there were Jewish MPs and, in the form of Benjamin Disraeli, a Prime Minister who according to Goodman maintained an ‘open pride in his Jewish background.’¹³⁵

It must also be recognized here that there is no disconnect between Christianity and circumcision—on the contrary, its relationship with Judaism means that the circumcision tradition, whilst not regarded as a literal obligation, is one that is nevertheless acknowledged and respected as forming part of its own religio-cultural heritage. A particularly acute example of that point is the fact that the Book of Common Prayer (readily available on the Church of England’s website) includes—as it has done for centuries—text making direct reference to the circumcision and naming of Jesus—all to be read on 1st January ie on the eighth day after his birth with the established Church thereby referencing, respecting, and underpinning the Jewish tradition that circumcision and naming take place on that given/particular day.¹³⁶ Nor is there any religio-cultural disconnect between Christianity and Islamic circumcision—Islam, like Judaism and Christianity, ultimately being an Abrahamic tradition with circumcision, therefore, being a commonly respected thread within all three faiths.¹³⁷

Looking then to the relationship between religion and law—and very much including how that relationship affects children—it must be acknowledged that our legal decision-making has long since and inevitably been influenced by the UK-dominant, ie a white Judaeo-Christian, world view. So it is that Hale and others frankly note that ‘(…) for many of us the “norm” is actually our understanding of the ethnic European White model of families.’¹³⁸

Similarly, and more directly on the issue of religion, we have Brooke LJ’s point in Re A that ‘There can, of course, be no doubt that our common law judges were steeped in the Judaeo-Christian tradition (…).’¹³⁹ This is all further reflected by Evans who notes the comparative challenges which minority groups espousing non-Christian practices face when trying to protect what they perceive as their religious rights:

the relatively liberal approach taken by the Court and Commission to the definition of religion or belief is subtly undermined at the manifestation stage (…) Whilst minorities and individualistic believers are recognized as deserving of protection under the Convention, that protection has only extended to manifestations that are highly analogous to Christian beliefs (…) Both tests disproportionately affect minorities whose practices may be less familiar to the Court and who are likely to be subject to great social pressure from private actors such as employers to forgo their religious practices in order to better assimilate into the dominant culture.¹⁴⁰

Aside from issues of religion and looking now to purported health/medical reasoning, the circumcision of boys both in the USA and the UK had, by the first half of the 20th century, become a very common—effectively routine—procedure with Carpenter noting that ‘By 1940, about 40 percent of British boys and 60 per cent of US boys were circumcised as a preventative health measure.’¹⁴¹ Whilst, certainly in the UK, these figures have dropped significantly over the decades,¹⁴² the high water mark of that 1940 figure shows that circumcision was a very well established practice in the UK such that by 1985 there was a good prospect that any man in his mid-forties or thereabouts would have undergone the procedure.

So, the overall point then on ‘general community standards’ is this: by the time we get to 1985 there was, unlike with FGM, nothing new, unknown, foreign, or somehow ‘un-British’ about circumcision. That FGM could be characterized in that manner aided its criminalization which has then since fed into family law’s ability to treat circumcision and FGM differently—it being of note that the very first point that Sir James Munby P rightly makes in Re B, having just posited the question as to whether FGM amounts to significant harm, is that FGM is ‘a criminal offence.’¹⁴³

C. Toleration and parental autonomy

On toleration, parental autonomy and the notion of limits, Re G states:

We have moreover to have regard to the realities of the human condition, described by Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, [50]:

… society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.¹⁴⁴

Re G, with this citation of Re L,¹⁴⁵ tells us that parents, in reality, have a considerable degree of scope to care for their children as they see fit—even where that care may be said to cause disadvantage and harm.¹⁴⁶ This principle of tolerance and the parental autonomy to act in a way that may seem to be, or actually is, harmful to children, is a significant factor in understanding why family law treats FGM and circumcision differently. Re G and Re L show us that, as a matter both of principle and practicality, family law recognizes that it can only go ‘so far’ in its interventions. It is a system that has to accept its limits and with that a system that has to accept that there will be harm (even significant harm) caused to children that some may find objectionable. Looping back to the Holmes/Posner point, what would be the consequences of Sir James Munby P having decided otherwise in Re B—which is to say, what would have been the consequences of him having decided that circumcision, like, FGM could never fall within the ambit of reasonable parenting and that the practices must be treated exactly the same?

Leaving aside any question of appeal, that would have resulted in a situation whereby (with the tap of a keyboard) circumcision, likely practiced in this jurisdiction on and off since time immemorial, would have been categorized by way of unelected judicial determination as being not only unreasonable but—like FGM and forced marriage—‘evil’, ‘repulsive’, ‘utterly unacceptable’, a ‘gross abuse of human rights’, and ‘an abomination’¹⁴⁷—for that is what it would actually mean to say that FGM and circumcision are the same. That would have been a sudden and radical departure from the ‘general community standards’ according to which circumcision has long since been regarded as acceptable and that so without any kind of consultative or legislative process which we might reasonably argue would be necessary given that, to date, Parliament has seen fit to legislate against FGM but not circumcision.

On a practical level, any such determination of equality would have to trigger state intervention.¹⁴⁸ Under section 47 the Children Act 1989, local authorities have a duty to investigate where there is ‘reasonable cause to suspect’ a child in their area is likely to suffer significant harm with a view, in particular, to ‘establishing’ whether an application for public law orders should be made—the relevant statutory guidance making specific reference to concerns around FGM triggering this duty.¹⁴⁹ Were circumcision to be treated by family law in the same terms as FGM then there would have to be public law applications from local authorities across the jurisdiction for the immediate removal of every Jewish and Muslim boy who might be likely to be circumcised. In respect of the Jewish community—given the tradition of circumcision on the eighth day¹⁵⁰—that would entail applications for the removal of new-born babies with the leading authorities having long since recognized the particularly draconian nature of such removal.¹⁵¹

The above developments would be horrifying for any member of the Jewish and Muslim community. It is also hard to imagine that the majority outside those practising communities would accept such an outcome. As postulated in Re G, ‘the reasonable man or woman (…) is (…) broad-minded, tolerant, easy-going and slow to condemn.’¹⁵² With that characterization in mind, it is hard to see how wider public opinion would support judge-made law going in the direction of equal treatment—for that ‘easy-going’ temperament would surely not tolerate the sight of likely thousands of Jewish and Muslim boys being removed from their parents’ care pending court determinations as to their long-term futures.

D. Exceptionality and bright-line tests

As to the limits of toleration and any dividing line between the reasonable and unreasonable, Re G continues as follows:

40. Where precisely the limits are to be drawn is often a matter of controversy. There is no ‘bright-line’ test that the law can set. The infinite variety of the human condition precludes arbitrary definition.

41. Some things are nevertheless beyond the pale: forced marriages (always to be distinguished of course from arranged marriages to which the parties consent), female genital mutilation and so-called, if grotesquely misnamed, ‘honour-based’ domestic violence.¹⁵³

The above appears to contain a tension: on the one hand, there is ‘no “bright-line” test’ but on the other ‘Some things are nevertheless beyond the pale.’ According to Lord Hughes in R (Tigere) v Secretary of State for Business, Innovation and Skills, a bright-line rule is a rule which is ‘simply stated, readily understood and easily applied.’¹⁵⁴ They are ‘rules based on readily ascertainable facts’ as opposed to ‘rules based in part on an evaluative exercise.’¹⁵⁵ With that in mind, it would seem that the point Munby LJ makes above is that, ordinarily, family law does not involve bright-line tests but that, equally, there are exceptions to that in the form of certain types of conduct, including FGM, which are necessarily and always to be condemned as unreasonable. Re B’s contention then that ‘it can never be reasonable parenting to inflict any form of FGM on a child’¹⁵⁶ becomes a rare but wholly justified ‘bright-line’ rule in family law. This is in the sense that once the basic facts are established—ie FGM has taken place or is likely to—then, automatically and with no further evaluation being required, unreasonable parenting is established.

Now the extent to which family law does or does not contain clear rules has been remarked upon widely. For example, Ferguson and Brake ask rhetorically ‘What defines family law? Is it an area of law with clean boundaries and unified distinguished characteristics, or an untidy grouping of disparate rules and doctrines?’¹⁵⁷ Answers to those questions have, over the years, included Douglas’ view that family law ‘has emerged as a body of law concerned with regulating a non-legal concept (…) it has grown piecemeal in response to perceived social changes, often presented as “problems” to be tackled’¹⁵⁸ and Dewar’s idea of ‘normal chaos’ which he extrapolates in this way: ‘I want to suggest that many contemporary developments in family law can be characterised as chaotic, contradictory or incoherent (…) Family law, I shall suggest, is contradictory, disordered, incoherent and, in part at least, antinomic.’¹⁵⁹

With this understanding of what family law is—and more importantly is not—the picture as to why FGM and circumcision are treated differently becomes clearer. That is to say, the question ‘why does family law treat female genital mutilation and circumcision differently?’ implies (albeit not unreasonably) an expectation of obviously equal treatment. However, there is in fact no reason to expect family law to have or generate clear ‘bright-line’ rules and, where it does exceptionally confront an issue by that means, there is limited reason to expect that rule to have an obvious counterpart on a separate but arguably similar or even very similar issue. To expect such a counterpart or a broader application/formulation of a ‘bright-line’ rule would be to expect a coherence or consistency within family law which it is widely acknowledged as not having. Whether that absence of coherence or consistency is a good, bad, or indifferent thing is not—for present purposes—the issue. Rather what is central here, is that that absence is a feature of family law which goes to explain its different treatment of FGM and circumcision—that different treatment being, in part, a natural outworking of what family law is.

Taking the analysis a step further, it is suggested that a core reason underlying the lack of coherence in the law regarding FGM and circumcision lies in the constraints associated with the consistent application of any bright-line rule according to which both practices were to be regarded as, in all circumstances, unreasonable. As already touched upon, any such approach/rule would have significant legal and practical consequences which—absent the endorsement of Parliament—would be unlikely to enjoy public support. So whatever fundamental similarities there may be between FGM and circumcision there could be no judge-made extension of the bright-line rule to cover both practices—as Dewar notes (with reference to the French sociologist Pierre Bourdieu and with an echo of Holmes), ‘the logic of following a rule ceases at the point at which logic ceases to be practical.’¹⁶⁰

E. Social change and ‘Felt Necessities’

It is a fundamental fact in this argument that in 1985 the movement against FGM had garnered enough traction for the passage of legislation criminalizing the practice and family law has, over time, responded to the essential social change that is criminalization. Whilst in recent decades there has been growing opposition to the circumcision of boys, the move against the practice has not attained a momentum that is remotely comparable.¹⁶¹ So, in allowing for the different treatment of FGM and circumcision family law is simply responding to social change or its lack thereof—which is family law acting entirely in accordance with its own essential nature. To say that, somehow, family law is ‘wrong’ to allow for such different treatment would be to overlook what family law is and what it is capable of doing.

As we focus in further on the ‘social change’ point—why does family law promote (or to use Re B’s language) ‘tolerate’ there having long-since been change for girls and not for boys—in particular, given that equal treatment lies at the heart of human rights discourse?¹⁶² This is a question which takes us back to the Holmes quotation and, in this context, it is suggested that the legitimate ‘felt necessities’ of our time are, and have been for some time, two-fold. First, there is the drive for the protection of women and girls from all forms of violence. That FGM is rightly regarded as a form of violence against women and girls was a point articulated during the course of the passage of the Prohibition of Female Circumcision Bill¹⁶³ as was the related point that the fight against the practice was being advanced within the wider context of the United Nations Decade for Women.¹⁶⁴ Far more recently, this theme continues to be seen in the Government’s 2021 strategy document, Tackling Violence Against Women & Girls. FGM is referred to over 50 times in this 85-page document including twice within the lead forward. Further, reflecting the strategic significance of the linking of FGM to policies designed to combat violence against women and girls more generally it is of importance that, according to the strategy’s ‘note on terminology’, FGM is—by definition—to be understood as falling under the core umbrella term of ‘violence against women and girls.’¹⁶⁵

The second of our keenest ‘felt necessities’, it is suggested, is the desire to protect the rights of religious minorities generally and, in particular, those of the Jewish and Muslim communities. Of particular note here, from the Jewish perspective, is that much of the literature that would seek to persuade us that the law is wrong to allow for the different treatment of FGM and circumcision is remarkably silent on the issue of antisemitism and, in particular, the fact of the Holocaust. Further, when proper consideration is given as to how arguments against circumcision can be received by some within the Jewish community the ‘felt necessity’ that underpins the ongoing acceptability of the practice is particularly acute. To take a clear example, writing in The Jerusalem Post in 2012, the late Chief Rabbi Jonathan Sacks attacked the then recent decision by the Cologne regional court according to which circumcision was to be regarded as a criminal act. In so doing, he said this:

It is hard to think of a more appalling decision. Did the court know that circumcision is the most ancient ritual in the history of Judaism, dating back almost four thousand years to the days of Abraham? Did it know that Spinoza, not religious but with John Locke the father of European liberalism, wrote that brit milah in and of itself had the power to sustain Jewish identity through the centuries? Did it know that banning milah was the route chosen by two of the worst enemies the Jewish people ever had, the Seleucid ruler Antiochus IV and the Roman emperor Hadrian, both of whom set out to extinguish not only Jews but also Judaism? Either the court knew these things or it did not. If it did not, then how was it competent to assess the claim of religious liberty? If it did, then are judges in Germany quite willing to say to religious Jews, in effect, ‘If you don’t like it, leave.’ Do judges in Cologne today really not know what happened the last time Germany went down that road?¹⁶⁶

F. Context and conclusion

The final and concluding ‘wrap around’ point arising from Re G is that, in family law ‘context is everything.’¹⁶⁷ When we place FGM and circumcision in their broadest contexts we can see material differences between the practices: FGM was barely known to this jurisdiction when it was first criminalized in 1985; the same could not be said of circumcision. By the time of Re B in 2015, FGM had then long since been recognized as a crime and a breach of human rights; the same could not be said of circumcision. Had Sir James Munby P determined in Re B that FGM and circumcision could never fall within the ambit of reasonable parenting then judge-made law would have—overnight—triggered the need for public law applications in respect of thousands of otherwise unimpeachable parents who, up until that point, had simply been adopting or intending to adopt a practice which had long since been regarded by the state as reasonable. The fight against FGM represents a particular concern within a wider and long-standing global movement aimed at advancing the rights and protections of girls and women; in contrast, and for want of comparable necessity, there has been no such global movement in relation to boys and men within which the circumcision question might be pressed.¹⁶⁸ In the minds of some within the Jewish community, there is a direct and understandable link between any challenge to the circumcision tradition and manifestations of antisemitism in Europe, in particular the Holocaust. In respect of FGM, there is no such linkage or association. The wider context within which FGM and circumcision are set is, therefore, very different thereby allowing a distinction to be drawn.

6. CONCLUSIONS

It is suggested that what we see in the leading authorities on FGM and circumcision is a repeated judicial effort to establish a distinction between the practices so as not to fall foul of that maxim that like cases should be treated alike.¹⁶⁹ However, this endeavour to rationalize the different treatment by reliance upon (i) precedent-based arguments, (ii) cultural/religious arguments, and (iii) health/medical arguments is an endeavour that falls short or is incomplete. This is because when each of these arguments is scrutinized in detail, it becomes apparent that the practices are not materially different in the way contended. It also has to be remembered here that, prima facie, the authorities countenance no appreciable similarities at all—a position which makes the law, as it currently stands, particularly vulnerable in the sense that we need to only identify one ‘black swan’ of similarity to undermine the universal ‘white swan’ claim that there is no comparison.¹⁷⁰

This falling short does not mean, however, that good reasons cannot be found or developed to justify a distinction being drawn but those reasons are to be found elsewhere—beyond the particularities upon which the leading authorities specifically rely and within the wider fundamentals of family law itself. In particular, the core of a properly drawn distinction between FGM and circumcision lies in the interaction between the five interrelated limbs as referenced in and extrapolated from Re G.

These collectively point to the nature of family law as a pragmatic system which develops in an ad hoc manner by way of responding to particular social problems, challenges, or pressures with FGM having been democratically perceived as demanding a categoric and zero-tolerance response in a way that circumcision simply has not. To demand equal treatment of boys and girls in respect of the practices is, on one analysis, entirely reasonable but it is a demand that does not take account of what family law is and, in particular, what the primary question is for judges dealing with children. That question is not ‘How do I enforce obviously equal treatment?’ but rather ‘What is in this child’s best interests?’—the question which brings into the frame the five interrelated limbs/principles of Re G.

In challenging judgments as I have done, I must also conclude, to some extent, in defence of the judiciary. The writing of a judgment is not an ‘examination’¹⁷¹ and as Posner says judges are not (at least when sitting) ‘law professors.’¹⁷² Their task is not to take the broadest discursive approach to a topic—it is to decide a specific dispute and under pressure of time.¹⁷³ It also has to be noted that Lady Hale does point to the centrality of context as a justification for the different treatment,¹⁷⁴ and Sir James Munby P notes the pragmatism of Holmes as relevant to understanding that different treatment.¹⁷⁵ In a sense, therefore, the better reasons for the different treatment are touched upon within the leading authorities but, as has been argued, their primary focus is on far more specific purported differences which, upon detailed scrutiny, fall away.

Also, whilst judgements are not ‘examinations’ and whilst judges are not ‘law professors’ the subject matter here is multidisciplinary and highly complex with a literature base that is ever burgeoning.¹⁷⁶ Rightly then, expert evidence has been adduced in the leading cases and, rightly, Re B notes ‘These are deep waters (…)’¹⁷⁷ but the family justice system ought not to be able to have it both ways—by which I mean it ought not to be able to contend that family judges are simply busy decision-makers lacking the capacity to navigate the ‘deep waters’ whilst simultaneously permitting them to set out across those waters by drawing/adopting comparisons in circumstances where those comparisons become extremely vulnerable to challenge.

Either the judiciary is well placed to make and examine the comparisons between FGM and circumcision or it is not and the position as we currently have it sits unsatisfactorily between the two ends of that spectrum.

Footnotes