M v F
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 14 June 2021 |
| Neutral Citation | [2021] EWHC 1616 (Fam) |
| Docket Number | Case No: LS19C00525 |
| Court | Family Division |
| Date | 14 June 2021 |
[2021] EWHC 1616 (Fam)
THE HONOURABLE Mr Justice Cobb
Case No: LS19C00525
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Coverdale House
East Parade
Leeds
Ms Semaab Shaikh (instructed by Jordan's Solicitors) for the Mother
Mr William Lindsay (instructed by Ramsdens) for the Father
Ms Louise McCallum (instructed by Local Authority solicitor) for the Local Authority
Ms Sara Anning (instructed by Switalskis) for the Children's Guardian
Hearing dates: 29 April 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The application
The application before the Court concerns P. He is a boy aged 21 months. He is currently subject to an interim care order in favour of X Local Authority (“the Local Authority”); he has lived all his life with extended maternal family members (Mr and Mrs R), who (it is agreed by all parties) are likely soon to become his permanent carers under a Special Guardianship Order.
P's parents are Muslim: his father by birth and heritage, and his mother by conversion to Islam some years ago.
By application dated 25 November 2020 brought under the Court's inherent jurisdiction, P's mother (“the mother”) seeks the court's authorisation for P to be circumcised, in accordance with the custom of the Muslim faith; she wishes this procedure to be undertaken forthwith, and in any event before P's second birthday. The application is supported by P's father. The Local Authority and the Children's Guardian both contend that the decision about P's circumcision should not be taken now, but should be deferred until later in P's life.
I have read a bundle of documents including a number of statements and reports; among them is a very helpful medical report from Mr Altaf Mangera MBChB(Hons) FRCS(Urol), M.D, FEBU of Sheffield Teaching Hospitals NHS Trust, a Consultant Urologist, and a Muslim. I have received able oral and written submissions from counsel for all parties. It was agreed that I would need to hear no oral evidence on this issue at this hearing.
Background facts
P is the mother's third child, and the second child born to these parents. P has an older brother Q, aged 3 (rising 4), and an older half-brother T (aged 5) both of whom live with maternal family relatives (not Mr and Mrs R) in a joint permanent placement under a Special Guardianship Order.
In early 2017, P's oldest half-sibling (T) suffered non-accidental injuries while in the care of his parents; these injuries were inflicted against a worrying backdrop of domestic abuse within the home, the father's poor anger management, and the parents' low level of co-operation and engagement with childcare professionals. T was removed from his mother's care. In view of those concerns, Q was removed from his parents' care when he was born, and, following a pre-birth assessment during which the parents indicated that they did not accept the earlier court findings, P too was removed at birth, and he was placed with Mr and Mrs R.
Mr and Mrs R are not Muslim. It is nonetheless agreed that they will care for P throughout his life; they have been positively assessed as Special Guardians for P, and the parents agree that this order should now be made. Mr and Mrs R have agreed that they will respect P's Muslim heritage; they have acknowledged the parents' preference for P to follow a broadly (but not strictly) halal diet.
The parents were assessed during the proceedings as joint carers for P, using a Resolutions Approach; in fact, their relationship ended after the assessment. Thereafter, the father recognised he could not care for P as a sole carer due to his work commitments and his caring commitments for his elderly mother. The mother recognised that she too would not be able to complete the Resolution work on her own, as a single parent to P. Accordingly the parents have both indicated that they would not oppose P remaining in the care of his maternal aunt and uncle.
The Local Authority have offered, and indeed arranged, to facilitate regular contact (three times per week) between the parents and P. The mother has not taken up any contact with P since 7 October 2020; she claims (wholly unconvincingly in my judgement, and there is no evidence to support this) that she has sought to pursue contact through contacts with the social worker. The father has not seen P since 18 December 2020; he claims to be unable to attend contact until the issue of circumcision has been resolved.
Expert evidence
As indicated above, I have received a report from the single joint expert, Mr. Mangera. He opines as follows:
“Male circumcision is the surgical removal of the foreskin i.e. the portion of skin covering the glans (head of the penis). This allows the penile head to be fully exposed at all times. There are many techniques that can be used to achieve this but by far the most common in UK practice is to use a “ring” technique such as plastibel. This is most often performed under local anaesthetic by qualified doctors who are required by law to be registered with the Care Quality Commission as per GMC guidance. Given [P]'s age, I suspect this is the most likely procedure which will be offered to him. The alternative technique is an “open” or “sleeve” technique which is generally reserved for older children and adults”.
Of the ‘ring’ technique, he says this:
“The procedure takes between 3 to 5 minutes and the child is restrained either by an assistant or the parents or by using a restraint board for the time taken to undertake the procedure (3 to 5mins). Post-operatively, the child is given over the counter oral analgesia such as paracetamol and/or ibuprofen. Some parents report not requiring any analgesia for their children and some report requiring regular analgesia until the ring has fallen off. I have not come across any cases where even stronger analgesia has been required … I and also the vast majority of practitioners in the UK would use a ring technique for [P] given he is less than 2 years of age. Two years of age is only a rough guide to when a ring procedure may not be feasible anymore as it is dependent on penile size”.
The risks of an open procedure are similar to those of the ring procedure:
“The procedure can take between 7 days and even up to 4 weeks to heal. During this age range, the most difficult factor to deal with for practitioners is fear of the injection or the procedure and requires a calm and willing child. If the child cannot remain calm then the procedure is not undertaken and deferred. The time taken to do the procedure can vary depending on age and is between 5 to 15minutes. The procedure is technically more demanding and may not be available locally as not all clinics offer services for older children and can undertake such a procedure”.
Mr. Mangera helpfully discusses the risks of male circumcision upon a child of P's age: he references the likely pain from the anaesthetic injection, and during the healing process (“mild to moderate… manageable with paracetamol”); he describes bleeding occurring in 1% of cases, usually in the first 12 hours; he describes infection being caused in less than 1% of cases; cosmetic issues are reported in 2% of cases; he references in passing other more minor risks. He refers to the suggested benefits of male circumcision, but does not expand on these extensively given (a) that circumcision for P is not proposed as a therapeutic intervention, and (b) the apparently divided medical opinion about the therapeutic benefits of circumcision.
Cohen J, who gave permission for the instruction of Mr. Mangera, specifically incorporated into the proposed instruction that the expert should be “able to speak as to the religious importance and timing of the procedure”. On that issue, Mr Mangera adds this:
“When it is strongly felt that the child will be raised in his parents' religion and they both agree then children of his age are not given an opinion as a matter of routine practice. Therefore, the conviction that he will be raised Muslim needs to be there. In my opinion if the court feels [P] should be raised as a Muslim child, as per his parents requests, he/his parents should be given the same rights as all other Muslim families; which is to have a circumcision at a young age provided both his parents understand the risks and benefits. If the court feels he may or may not be raised as a Muslim child and there is doubt in this fact, then due to the irreversible nature of the procedure the court may wish to delay the procedure until [P] is capable of making his own decision. The time taken to decide by [P] carries the risks that the procedure is technically more difficult, takes longer to perform, is more memorable for him, more costly and takes longer to heal”.
This last quoted section is interesting, but does not – for obvious reasons – offer, or even purport to offer, a wider welfare perspective on the issue.
The arguments of the parties
Ms Shaikh argues on the mother's behalf that circumcision of P represents an important component of his identity and cultural and religious heritage; she accepts that male...
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Best interests determination: Circumcision & religious background.
...(Circumcision: Child in Care) [2021] EWHC 1616 (Fam), an English decision available on BAILII, concerned a boy aged 21 months who was subject to an interim care order in favour of a local authority. He had lived all his life with his maternal aunt and uncle, who were likely to be soon appoi......