Judge dismisses application by birth parents for boy in interim care to be circumcised before second birthday

A High Court judge has dismissed an application by a mother for a boy (P), who is aged 21 months and in interim care, to be circumcised in accordance with the custom of the Muslim faith before his second birthday.

The mother's application was supported by P's father. The local authority and the Children's Guardian both contended that the decision about P's circumcision should not be taken now.

In P (Circumcision: Child in Care) [2021] EWHC 1616 (Fam) (14 June 2021) Mr Justice Cobb ruled that P should decide himself "once he has the maturity and insight to appreciate the consequences and longer-term effects of the decision which he reaches".

P is currently subject to an interim care order in favour of the local authority and lives with members of his mother's family ('Mr and Mrs R').

P entered their care because the local authority became aware of domestic abuse at his parents' home when his oldest half-sibling suffered non-accidental injuries. P's two siblings were removed from the home. P was born after the incident and, following a pre-birth assessment during which the parents indicated that they did not accept the earlier court findings, was removed at birth and placed with Mr and Mrs R.

P's father is Muslim by birth and heritage, and his mother is a convert to Islam. Mr and Mrs R, who have been positively assessed as Special Guardians by the council, are not Muslim but agreed to respect his Muslim heritage. As part of this, they observe the parents' preference for him to follow a "broadly" halal diet.

It was argued on the mother's behalf that the circumcision of P would represent an important component of his identity and cultural and religious heritage.

Counsel for the mother argued that the combined and strongly held views of the parents should carry considerable weight with the court. She also pointed to the fact that the local authority had initially been willing to contemplate and allow the parents to arrange for P to be circumcised when he was a newborn infant, but it had not happened. "In this respect, I must observe that the mother fails to acknowledge that neither she nor the father took the appropriate or necessary steps to arrange it," Cobb J said.

Counsel for the mother claimed that she was concerned that P would not wish to be circumcised later in life because of the pain and discomfort that the medical procedure would entail.

The father echoed the mother's concerns. His counsel argued that: "[t]he issue of circumcision is central to [P] 's need to understand his identity and background both now and in the future. [P] will always have a connection with his parents who are practicing Muslims. The local authority's final care plan proposes a high level of contact with the parents following the making of a Special Guardianship Order. [P] will benefit from a shared sense of belonging and identity."

The local authority said it deferred to the medical advice in that unless it was medically necessary that this was something that it would not support. The council believed that it was in [P] 's best interests to make his own decisions about this when he was old enough to do so and knowing all the facts about circumcision and the cultural reasons that underpin this.

In a later statement, the local authority's social worker added that the most effective way for P to stay connected to his Muslim identity was through regular contact with his birth parents and other members of his birth family who practise the faith.

Additionally, the council suggested that providing P access to materials such as the Qur'an, a prayer mat and age-appropriate and child-friendly books would "explain key parts of the faith and traditions and what being a Muslim means".

Before reaching his conclusion, Cobb J said the decision was "finely balanced" with "potent arguments on both sides of the debate".

The judge said that if there had been no interim care order in place, the two parents acting in agreement and exercising their shared parental responsibility would have been able to provide consent for P's circumcision for either therapeutic or non-therapeutic reasons.

"But P is currently subject to an interim care order; the Local Authority currently has senior parental responsibility, and presently opposes the procedure," said Cobb J.

"I am satisfied that section 33(3)(b)/(4) CA 1989 does not give the Local Authority absolute authority to oppose the procedure; I am equally satisfied that in opposing the procedure the authority is not offending against the statutory proscription on causing P "to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made" (section 33(6)) – P remains a Muslim boy being raised broadly in accordance with Muslim tenets."

Cobb J added: "The issue for determination requires me to exercise a pure welfare-based jurisdiction."

The judge said that he was wholly satisfied that P should be brought up as a Muslim child, as his parents wished, even though he would be living in a non-Muslim household. "It is important that P retains, and is allowed to develop an interest in, the profound and rich tenets of the Islamic faith," he added.

Cobb J was "equally satisfied" that Mr and Mrs R understood the importance of P's heritage and would "honour that as far as it is possible for them to do so". He also called their lack of support of the circumcision a "matter of significance" to him.

The judge added that, even though he attached significant weight to the parents' desire for P to be circumcised to connect with his Muslim heritage, circumcision "alone is not likely to establish or enhance P's sense of cultural or religious identity".

This would be best achieved at his age by regular contact with his parents who could, in the best way they consider possible, help him to understand his identity and the faith into which he had been born, he said.

The judge added: "When he is older, they can be on hand to help him to reach a decision on whether to be circumcised. My decision has, to some extent, been influenced by the fact that presently neither parent chooses to see P, and neither parent has (contrary to their offer to do so) provided P with age-appropriate books and/or learning materials about Islam."

On balance, Cobb J concluded that the decision to circumcise P should be deferred until he is able to make his own choice, once he has the maturity and insight to appreciate the consequences and longer-term effects of the decision which he reaches.

"I encourage the parents to resume their contact with P, so that not just his Muslim heritage, but also his experience of his wider family and origins, can be better understood and appreciated by him."

He proposed to make no order on the application.

Adam Carey