Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,Lord Justice Thorpe,LORD JUSTICE THORPE,LORD JUSTICE SCHIEMANN |
| Judgment Date | 25 November 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J1125-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FAFMI 1999/0618/2 |
| Date | 25 November 1999 |
[1999] EWCA Civ J1125-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE WALL)
The President
(Dame Elizabeth Butler-Sloss)
Lord Justice Schiemann
Lord Justice Thorpe
FAFMI 1999/0618/2
MISS L J KUSHNER QC and MR HUMPHREY (Instructed by Messrs Metcalfe Wright & Platt, Stockport, SK4 4DT) appeared on behalf of the Appellant/Father
MR D HARRIS QC and MISS H MATUK (Instructed by Messrs Berry & Berry Cocker, Smith & Co, Manchester, M28 3JB) appeared on behalf of the Respondent/Mother
MR M NICHOLLS (instructed by the Official Solicitor, London WC2A 1DD) appeared on behalf of the Guardian ad Litem
Thursday, 25th November, 1999
THE PRESIDENT : I will ask Lord Justice Thorpe to give the first judgment.
On 23 April 1999 Wall J gave a reserved judgment refusing a father's application for a specific issue order that his five year old son be circumcised. No earlier application raising this issue is known and, accordingly, he gave permission to appeal to enable the father to bring his case to this court.
The judge's factual summary could not be bettered. What follows is all extracted from his judgment at points between pages 3 and 8. I quote:
"The father is 27. He is Turkish by birth and upbringing, and retains his Turkish nationality, although he is permanently resident in the United Kingdom and also has a British passport. He is a Muslim, although, as he freely accepts, he does not actively observe many of the tenets of his faith.
The mother is 29. She is English and, apart from a short period around the time of her marriage to the father when she lived with him in Turkey, she has lived throughout her life in England. She is notionally a Christian and a member of the Church of England but, like the father, she is non-practising.
The parents met whilst the mother was on holiday in Turkey in the Summer of 1992. Later that year she returned to Turkey, and she and the father were married in Turkey on 18 November 1992. It was a first marriage for both of them.
The father says that whilst the mother was pregnant with J she gave her agreement that any male child would be circumcised. I accept that evidence.
Following the parents' return to England from Turkey in February 1993, the marriage, despite the birth of J in March 1994, did not endure, and they separated on 29 September 1996 when J was aged two and-a-half.
J is five and attending a local state primary school. He is being brought up in an essentially secular household. The only contact he has with Islam is through his father. The mother has no Muslim friends and no connections with any members of the Muslim community. The father, likewise, does not appear to have Muslim friends or mix in Muslim circles."
Against that factual background, the judge then posed the question: what is J's religion? He answered it thus, adopting a submission made by his Guardianad litem, the Official Solicitor. I quote:
"In English Law, therefore, J would seem to be being brought up as a 'non-practising Christian' in accordance with the convictions of his mother with whom he lives and as a non-practising Muslim when he stays with his father. He therefore has a mixed heritage and an essentially secular lifestyle. He does not have a settled religious faith."
The judge turned to decide, first, a substantial issue as to whether the mother should be required to bring J up as a Muslim; an issue which is no longer live in this court since both parties accept the judge's pragmatic resolution under which the father is free during periods of contact to deal with this aspect in his own way.
The judge's approach to the dispute over circumcision was characteristically thorough. He considered the lawfulness of ritual male circumcision, concluding that it was lawful for two parties jointly exercising parental responsibility to arrange the ritual circumcision of their male child.
The judge then recorded medical attitudes to ritual circumcision, having heard evidence from a consultant pediatrician and having read the GMC and BMA guidelines supplied by the Official Solicitor. He concluded that current mainstream medical opinion requires both parents' consent and, particularly, maternal consent when the father lacks parental responsibility. Additionally, he recorded in the consultant's report that circumcision was not medically indicated for J since he did not suffer from any of the three medical conditions that can make circumcision either necessary or advisable. He also accepted the consultant's advice that:
"The procedure is not pain free and there are potential risks both physical and psychological, which may be small but which are nonetheless definite."
The judge's summary of the submissions of the parties is full and in many ways favourable to the father. I need quote only this sentence:
"By comparison with what I have to say was the mother's pallid and unconvincing statement of her religious beliefs, the father's passionate plea for J to be given his proper identity as a Muslim and for him to be thereby enabled to identify fully with his father was impressive."
In an important section, the judge considered the likely effects on J of being circumcised. There, he made these significant findings:
"In Turkish society, a Muslim male child's peers will all be circumcised: in the circles in which J will grow up, he is likely to be in a small minority and he will not have the reassurance that all his contemporaries have been through —or will go through —the same experience.
The incident I have described also makes it clear to me that the mother, as J's primary carer, would find it extremely difficult to present the question of circumcision to J in a positive light, and unlike ritual circumcision occurring in the context of a Muslim family, where the event would be one of celebration and fulfillment, J's circumcision would be likely to be surrounded by tension and stress, even though the mother was able to agree with the father's counsel in cross-examination that she would, of course, care for J after the operation and would have no difficulty changing dressings.
In my judgment the strained relationship between the parents, and the fact that as a circumcised child J would be unlike most of his peers, increases the risk that J will suffer adverse psychological effects from being circumcised."
Against that background, Mr Justice Wall stated his conclusions, marshalling them by reference to the statutory checklist in section 1(3) of the Children Act 1989. However, he preceded that exercise with this concise passage:
"The major benefit is that J will thereby be firmly identified with his father, and confirmed in the eyes of Islam as a Muslim. However his circumcision would not be part of a family celebration, and he would not, thereafter, be brought up in a Muslim family environment.
The disadvantages are that despite the father's passionate defence of the procedure, J may be traumatised by it; he will, moreover, be living in the household of his mother, who disagrees with the procedure, and will find great difficulty in presenting it to J in a positive light."
Finally, in refusing the application, the judge stressed that his conclusion was finely balanced and depended on the facts as he had found them. He summarised the factors which had influenced his conclusion in the following four numbered paragraphs:
"(1) Although born a Muslim, it is clear to me that J is going to have an essentially secular upbringing in England. He is not going to mix in Muslim circles, and his main contact with Muslims and the Muslim ethos will be his contact with his father. J is therefore not going to grow up in an environment in which circumcision is a part of family life or in which circumcision is a part of family life; or in which circumcision will be in conformity with the religion practised by his primary carer; or in which his peers have all been...
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