LONDON: Court ducks for cover in circumcision/custody case

UK Human Rights Blog
July 20, 2013

UK court ducks position on circumcision

by Rosiland English


605islamSS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 - read judgment
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Background facts
The appellant and her husband were Roman Catholics and their six year old son (C) had also been brought up as a Catholic. While the appellant and her son were visiting her sister in the United Kingdom, the husband converted to Islam. The mother claimed asylum on the grounds that if she were returned to Malaysia, she would be arrested and risk ill-treatment from her husband, who would also insist that C be raised as a Muslim and be circumcised.

She submitted that to deny her the opportunity of teaching C about her own religious faith was a “flagrant” breach of her right to respect for her private and family life under Article 8 of the European Convention on Human Rights and of her right under Article 9 to practise her religion (flagrancy being a base-line requirement for resisting immigration controls). Whilst she acknowledged that circumcision need not violate a child’s rights in the context of loving family relationships and where supported by both parents, the appellant was strongly opposed to the procedure and maintained that it would not be in C’s best interests to return him to Malaysia where his father’s wishes would prevail over her own. She also contended that the tribunal below had failed to consider C’s best interests except in its assessment of proportionality.

The Court of Appeal dismissed the appeal.

Reasoning behind the judgment
... As for the circumcision question, it was unnecessary to decide whether the procedure could infringe a child’s rights under Article 3 or Article 8 as the first instance tribunal had found that C would have the positive emotional support of his father and would be conforming to the broad expectations of his culture, both significant factors. Indeed, Moore-Blick LJ found it “difficult to see how C’s circumcision would involve any infringement of the appellant’s Convention rights”

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Comment
Male circumcision is a widespread religious and cultural practice which has ancient origins…it is regarded as an acceptable practice among communities of all kinds, provided it is carried out under appropriate conditions.

Slavery, capital punishment, racial or gender discrimination and many other practices are also widespread and sanctified by ancient tradition: the obvious riposte is that neither popularity nor antiquity shield such institutions from scrutiny by the Human Rights Convention or other international instruments. It is interesting that no mention was made in this case of the widely-covered German regional court ruling on circumcision, where the court paid particular regard to the fact that circumcision led to the child’s body being “permanently and irreparably changed” and that it could affect his own religious interests later should he decide, for example, not to be a Muslim (see Adam Wagner’s post with its link to the English translation of the ruling). In that case the Cologne Regional Court decided that

The circumcision of a boy unable to give medical consent, correctly performed by a doctor for religious reasons with the consent of the parents, is not excluded from the definition of the offence [in German law of assault]…the occasioning of the circumcision by the parents has no effect of justification, since the parents’ right to religious upbringing of their children, when weighed against the right of the child to physical integrity and to self-determination, has no priority, and consequently their consent to the circumcision conflicts with the child’s best interests.
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The appellant mother in this instant case was, in effect, asking the court to take a position on a doctrinal matter: the centrality of the circumcision procedure to Islamic observance. And it balked at the challenge, because doing so would get it embroiled in the controversy over rival religious practices. Was it right to do so? Yes, because religious experience should be inviolately private and therefore out of place in a public forum. No, because in a case where religion touches on a child’s interests, and the welfare of children is meant to be a paramount consideration, the courts are under a duty to square up to the issue, even if it is normally kept under wraps. If circumcision is one of the sharp demands placed on the child by religious faith, it should be scrutinised with the same rigour as any other practice which affects the interests of the child.