G (Non-therapeutic circumcision: religious/cultural grounds), Re

I am concerned with a boy, “G” who is aged 16 months and subject to a care order made in favour of the applicant local authority. By an application dated 11 June 2024 brought under the inherent jurisdiction, G’s father (“the father”) seeks the court's authorisation for G to be circumcised. G's mother (“the mother”) supports the application. I intend no disrespect to either the mother or father in referring to them as such in this judgment and do so purely for the purposes of protecting their, and their child's anonymity.

Both the local authority and the Guardian (on behalf of G) oppose the application and contend that it is for G to make any decision about circumcision later in his life, if he so chooses.

On 25 June 2024, the matter came before me for directions. At that time, the father was the applicant. The parties agreed that where there was a disputed issue of non-therapeutic circumcision in relation to a child in care, the local authority should bring the matter to court promptly for resolution, this having been the approach of the court in Re P (Circumcision: Child in Care) [2021] EWHC 1616 (Fam), [2022] 4 WLR 53 at paragraph 27(xii). I substituted the local authority as the applicant and directed medical evidence and final witness statements from the parents and local authority to be filed. The parties agreed no oral evidence would be required and were content to proceed on submissions.

I have considered a hearing bundle including witness statements from the father, the social worker (with medical evidence exhibited), a report from the Guardian, and a ‘core bundle’ from the care proceedings which includes a detailed parenting assessment dated 22 November 2023. I have also read skeleton arguments filed by all the parties, save for the mother. I shall refer to the key evidence as I see it below but emphasise that if I have not referred to something in this judgment, that does not mean I have not considered it.

The hearing was delayed because neither parent attended the hearing on the first day. I was told that the father was a serving prisoner but it was believed that he had been released from prison on 1 September 2024, although his whereabouts were unknown. The day before the hearing, Mr Bartlet-Jones, counsel who had represented the father in the care proceedings, emailed the court stating that the father was no longer in receipt of legal aid funding, no updating witness statement had been filed and counsel had not been able to confirm his instructions. Mr Bartlet-Jones indicated that he would appear on the father's behalf pro bono and sought permission to attend remotely, which I granted.

On 4 September 2024, Mr Bartlet-Jones told me that he had still been unable to contact the father and raised the possibility of an adjournment. After discussion with the parties, I asked that enquiries be made as to whether the father had been given notice of the hearing or served with the order dated 25 June 2024. On 5 September, Mr Bartlet-Jones confirmed that fortunately, he had been able to speak to his client, who was still incarcerated, and that he wished to pursue his application, and to rely on his statement dated 7 June 2024.

I also asked for enquiries to be made regarding the mother's non attendance. I was informed that the social worker, Ms Lauren Sutherland, had previously emailed the court papers with the order including notice of the final hearing to the mother, but she had not had any contact with the local authority or her children for some five weeks. On 5 September 2024, Ms Sutherland had been able to speak to the mother who told her that she had not received the papers due to issues with her phone. She had also not filed a witness statement but told Ms Sutherland that she supported F's application. The mother did not seek to adjourn proceedings or participate in the final hearing as she was in Kent.

I was directed to Rule 27.4 of the Family Procedure Rules 2010 regarding the non attendance of the parties. I was satisfied that both the mother and the father had been given reasonable notice of the application and the hearing in accordance with Rule 27.4(3)(a), Both had confirmed their respective positions, and neither party sought an adjournment. Notwithstanding their non-attendance, I was also satisfied, given G's age, the plans for adoption and the need for a decision to be made promptly, the circumstances of the case justified proceeding with the hearing in their absence, per Rule 27.4(3)(b).

On 11 June 2024, final care orders and placement orders were made in respect of G and his twin sister (‘S’) by HHJ Roberts sitting at the Central Family Court. The care proceedings had been issued due to concerns about the parents' history of drug use, mother's mental health and father's criminal history. In addition, the parents' relationship was volatile with a history of domestic abuse by the father against the mother. The parents each accepted they were unable to care for the children and did not oppose the making of the final orders.

The father was incarcerated on 5 March 2024 for 38 months in respect of drug related offences, including intent to supply Class A drugs, and remains in custody with a release date in November. Monthly contact was facilitated from April 2024 and the father has had some contact sessions with G and S whilst in prison. The father has Lebanese, Muslim heritage. He has an older 12 year old son, from a different relationship, who lives with his mother.

The mother is of white British heritage and described as vulnerable. She has four older children (not related to this father), all of whom have been removed from her care and placed with wider family members. She has had some contact with G and S, but as noted above, she has not had any contact with them or the local authority for over five weeks, but stated she wished to resume contact.

Both G and S live together with the foster carers with whom they were placed when discharged from hospital after their birth while the adoption process progresses. They are said to be healthy and thriving and receiving an excellent level of care from their foster carers who are devoted to them, and will remain with them until an adoptive family is identified. It is intended that they will be placed together in their adoptive family.

Dr Sophia Datsopoulos, Consultant Community Paediatrician reviewed G's adoption medical records and concluded that there was no clinical or therapeutic indication for circumcision nor any health reason why surgery would be more of a risk to G than the background risk to any child.

A report dated 4 July 2024 from Dr Ashwini Joshi, Consultant Paediatric Urologist sets out the procedure and associated risks, summarised below:

Ms Sutherland has identified a suitable clinic where a circumcision could be performed for a child between 13-24 months old using the ‘ring method'. A local anaesthetic is injected into the base of the penis and the foreskin retracted. The ring is passed over the head of the penis and the retracted foreskin is pulled back over the ring, tied and trimmed back to the edge of the ring. Any bleeding edges are cauterized. Over the next week, the thread cuts through the foreskin which will drop off with the ring, revealing a fully circumcised penis.

The procedure is done as a day case, with a waiting time of 15-20 minutes post operatively to ensure there is no further bleeding. The penis will be sore and inflamed for a few days and regular pain relief for at least three days is usually required. Antibiotic ointment is applied three times daily until the ring falls off, and salt water baths are recommended daily with regular nappy changes. The healing process begins once the ring falls off, usually 7-10 days later.

Ms Sutherland also produced a document prepared by the British Medical Association: “The law and ethics of male circumcision: guidance for practitioners” (2004) given to her by Dr Georgios Eleftheriou, Consultant Paediatrician at the Royal London Hospital. No party referred to this in submissions but neither this guidance, nor the medical evidence is in dispute.

The local authority relies on the witness statement of the social worker dated 16 July 2024, supported by medical evidence and a parenting assessment dated 22 November 2023. Ms Sutherland also gave brief oral evidence. She observes that the father has clearly and consistently stated that he is not a practising Muslim, does not follow a halal diet, and eats pork. The foster carers, who are neither Lebanese nor Muslim in background, celebrate Christian festivals and the father has not objected to this.

Ms Sutherland notes that the father's older son has not been circumcised and that there are no plans for this to be done. The father has stated that he does not want the twins to be raised in a specific religion, as recorded in the Child Permanence Report:

Further, when discussing potential adopters with the social worker, the father did not express a preference for a culturally or religiously matched placement. Ms Sutherland also reports that during contact visits to prison, when the foster carers have asked him if there is anything they could do to promote the children’s cultural and/or religious beliefs, the father has always said ‘no’. Ms Sutherland expanded on this in oral evidence stating that it has been suggested to the father that the children could be provided with ‘halal food days’ or be taken to visit a mosque but he has declined all such offers.

In discussions with Ms Sutherland, the mother stated initially that she wanted G to be circumcised on health grounds, highlighting that one of her sons had medical issues with his foreskin, which necessitated a therapeutic circumcision, but she has since stated that G should undergo a (non-therapeutic) circumcision for religious reasons. The mother is not Muslim and none of her three other sons (some of whom are from a Muslim background) have been circumcised.

In oral evidence, Ms Sutherland said she was allocated to this case in February 2023 and has been compiling life story work since G's birth. She has gathered information and pictures from the foster carers, as well as taking her own pictures, and has put this together with information about the mother, the father, G’s siblings and wider family members, including G's Lebanese grandparents.

Mr Bartlet-Jones suggested that the life story work was likely to be scant and lacking in meaningful information about G's cultural identity. Ms Sutherland disagreed stating that there would be details about the cultural identity of both parents, what they wanted for their children in the future, as well as details about contact and what happened during court proceedings, presented in a child focussed way. It was an on-going piece of work and the adoptive parents would be encouraged to continue with it.

Ms Sutherland referred to an agency engaged by the local authority called ‘Adopt London North' and a ‘family finder’, with whom she has already met and the matching process has begun. She stated that the agency offers support and advice to adopters to work with children to understand a wide variety of issues including cultural and religious background. At her initial meeting with the family finder, all matters within the child permanency report including cultural and religious persuasion and dual heritage were discussed. She indicated that whilst the family finder would aspire to find adopters with similar cultural heritage, this may not be achievable.

However, if G and S were placed with white British adopters, the adoption service would ensure that they had an understanding of G’s Lebanese background. At this stage, it was not possible to know whether the adoptive parents would be white, mixed race, with Lebanese heritage, or if they had any religious beliefs or views about circumcision.

Ms Sutherland also indicated that they would look at adopters who would be supportive of contact between G and his older half brother, as a family member with the same mixed race heritage, and an important link to G's racial and cultural background. Ms Sutherland agreed with Ms Rayson that circumcision is ‘one small aspect of much wider cultural heritage’ and that circumcision is not solely the means by which G's cultural identity is enhanced.

Ultimately, the local authority argue that there are no clear or cogent arguments that this irreversible procedure would be in G’s best interests and that the decision should be deferred until G is older and can make the decision himself.

The father relies on his statement dated 7 June 2024 and position statement dated 25 June 2024 which focus intensely on arguments around the importance of G's Muslim heritage and Islamic traditions. He states that he wishes the circumcision to take place before G is 18 months old, to avoid G having memories of the procedure. He points to the importance of this tradition by stating that all the males in his family have been circumcised.

There is conflicting evidence in the father's statement; on the one hand he seeks for G to be circumcised on religious grounds, yet he also states that he is not a practising Muslim, nor does he wish his children to be brought up in any particular faith. Having taken further instructions from the father, Mr Bartlet-Jones revised his position in oral submissions, relying solely on the argument that G should be circumcised as part of his cultural heritage, asserting that circumcision has symbolic significance, relevant to G's Lebanese identity.

It is also common ground that the father has always expressed positive feelings towards the foster carers, knowing that G and S are immersed in a non-Muslim white British household and celebrate Christian events. The father has also discussed with the foster carers that he would not wish for them to do anything differently to influence G’s religious or cultural identity.

In respect of the father's 12 year old son who has not been circumcised, Mr Bartlet-Jones told the court that the father was seeking for this to be done. However, Ms Sutherland told the court that she has had discussions with the child’s mother who did not agree to a circumcision and confirmed that there are no plans for him to be circumcised in the future.

The father feels strongly that circumcision of G is an important part of his Lebanese identity which should be carried out before the age of 18 months, as otherwise it will be a difficult procedure for G to undergo later in life when the prospect of an operation under GA will be daunting and healing may be slower.

Mr Bartlet-Jones submits that realistically once G is adopted, there will be very limited contact (if any) with his father so that it may not be practical or there may be no opportunity to discuss such a sensitive issue as circumcision, and its relevance to Lebanese culture. Further, as the background of the adoptive parents is not yet known, the father says it is even more important to carry out a circumcision now, to preserve this aspect of G's cultural identity.

As noted above, the mother’s rationale for supporting the application has changed from medical to religious grounds. However, the father has changed the basis of his application from religious to cultural grounds and it is therefore difficult to comprehend M's position for a non therapeutic circumcision on either religious (or cultural grounds), especially as the mother is not, and never has been, a practising Muslim and her ethnicity is white British. She is no longer in a relationship with the father. None of her other sons, including those from a Muslim background have undergone a circumcision. Nor has she has indicated in what ways she would like the twins mixed heritage to be supported. More recently, she has disengaged with contact and as such her reasons for supporting the application seem wholly unclear and unconvincing.

The mother has not sought legal advice or filed a statement setting out her position despite having had an opportunity to do so but simply re-iterates that she supports the father's application on religious grounds. In her conversation with Ms Sutherland on 5 September, she did not wish to participate in the proceedings (even though a remote link could have been facilitated) and her focus was on discussions about contact with the children, having not seen them for over five weeks (this being due to her not having taken up contact sessions).

The Guardian’s report prepared by Ms Jacqueline Jones, dated 20 August 2024 sets out her position which is aligned with that of the local authority. Ms Jones was unable to meet with the father due to his incarceration but records that the father is not a racticing Muslim who has not wished the foster carers to do anything differently in terms of the children’s religious or cultural upbringing. She stresses the importance of acknowledging that one half of G’s background is British and non-Muslim through his mother who has expressed no intention of converting to Islam.

When considering the impact on G, Ms Jones points out that it is the long lasting impact this would have on his identity which is of greater significance than the risk/benefits attaching to the procedure:

Ms Jones observes that the religious, cultural and ethnic background of G’s adoptive parents is not yet known, and as G’s future primary carers, they might want a say in whether he should be circumcised. As circumcision is irreversible, the implications for G’s sense of identity may be profound. The procedure may also cause him to feel as if he has a different identity to his twin sister.

Ms Jones suggests that it might be unfair for G’s identity to be marked as even slightly different to that of his sister, particularly as this will be a significant and important relationship, which is likely to remain so. Mr Bartlet-Jones submitted that the non therapeutic circumcision of males was universal within the father’s community and family, and this would not affect S’s identity.

Ms Jones acknowledges that the life story work undertaken by the local authority is committed to ensure the children have an understanding of their rich cultural and ethnic heritage. In conclusion, the Guardian is strongly of the view that G should not be circumcised.

In her submissions, Ms Rayson reminded the court that HHJ Roberts had made final care orders and placement orders for non consensual adoption on the basis that neither parent could provide good enough parenting and it was in the children’s welfare interests to be adopted. She emphasised that each twin will go through the adoption matching process with life history work done which travels with them. Adopters are all trained in continuing such work, including cultural and religious matters, with the children they adopt and there is an overarching service available to them, as described by the social worker, if they need any further support. At the end of Cafcass involvement, they write a ‘later in life letter’ to the children which will also travel with G and S. There would therefore be work done to support G and S to understand and be aware of their cultural heritage, both white British and Lebanese.

There is no dispute as to the legal principles which apply in this case. It is accepted that the parents both have parental responsibility for G, and will retain that parental responsibility until G is adopted. The local authority currently has senior parental responsibility for G pursuant to section 33(3) of the Children Act 1989 (‘CA 1989’) although this will be ceded when G is adopted. No party argues that as a matter of statutory construction either the parents or the local authority have the decisive ‘say’ in relation to the issue.

The local authority is required, for as long as it has a care order, not to take any step to change a child’s religious upbringing. Section 33(6) of the Children’s Act 1989 provides that:

“…While a care order is in force with respect to a child, the local authority designated by the order shall not—

(a)

cause the child 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;…"

The parties have all referred to the decision of Cobb J in Re P (circumcision: a child in care) [2021] EWHC 1616.Although the factual matrix of that case is different to the present facts, it is accepted that the following important guiding principles are applicable to this case which also involves non-therapeutic circumcision in a child in care (at paragraph 27):

“General

(i)

While it can never be reasonable parenting to inflict any form of FGM on a child, the position is different with male circumcision; “Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms” (Re B and G (Children)(No 2) [2015] EWFC 3, [2015] 1 FLR 905 at para 72);

Welfare

(ii)

The welfare of the child, both in the immediate and long-term, is the paramount consideration in reaching a decision about circumcision for a male child (the law in its current form is in section 1(1) Children Act 1989 ); this is uncontroversial in the instant case, and has been the starting point of all previous decisions;

(iii)

The welfare checklist ( section 1(3) CA 1989 ) is engaged;

(iv)

Religious upbringing of a child in care may be a matter of great importance; the significance of the issue will vary from case to case depending on the strength of the religious beliefs and observance of the child's parents; on any account, this factor will need to be incorporated within (and not in place of) the wider welfare review;

Local Authority duty

(v)

A local authority is under a duty to ensure that a child in their care is not brought up in any different religious persuasion from that followed by his parents prior to the care order. If the local authority breaches that duty, it will be exceeding the limitation imposed on its exercise of parental responsibility by section 33(6)(a) CA 1989;

Medical issues

(vi)

That the circumcision procedure is irreversible is a matter of significance when looking at the short and longer term implications for the child;

(vii)

The court must review the medical risks and benefits of such a procedure, particularly where it is proposed for a non-therapeutic purpose;

Views of parents and others

(viii)

The religious views and wishes of both parents carry significant weight (they may of course as between themselves have different views/wishes); the court should pay these views “serious heed”. The court will be slow to conclude that a parent faithfully striving to follow the teachings of their religion is acting unreasonably;

(ix)

The court is not bound to give effect to the wishes of the parents about religious upbringing “when satisfied that the child's welfare requires otherwise, and in giving effect to them the court has power to do so in such a manner as it may consider to be best in the child's interests”;

(x)

The views of the primary carers of the child (if not the parents) also carry significant weight; it is a strong thing to impose a medically unnecessary surgical intervention on a residential carer/parent who is opposed to it;

(xi)

The particular environment in which the child is going to be raised is an important factor; if the environment is one in which circumcision is not a part of family life, or in which it is not in conformity with the religion practised by his primary carer, this would be a relevant factor.”

Further in respect of the parents’ views Cobb J held at para 34:

“I accept that both parents, practising Muslims, earnestly wish the circumcision procedure to take place in order for P to connect with his Muslim heritage. Their views are of considerable importance, and I attach significant weight to them. That said, 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 can, in the best way they consider possible, help him to understand his identity and the faith into which he has been born. 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.”

Reliance was placed by counsel for the father in his written submissions on Article 9 of the European Convention on Human Rights: freedom of thought, conscience and religion, but in oral submissions, this was not pursued.

Having set out the above principles, Cobb J concluded that the issue for determination requires the court to exercise a pure welfare-based jurisdiction and that the principles extracted from the authorities apply as much in public law as in private law. On balance, Cobb J concluded that the decision to circumcise P should be deferred until he is able to make his own choice.

How then must I balance the various considerations to which I have referred? The starting point is G's welfare, which is of course paramount. Is it in his best interests to be circumcised? The application for G to be circumcised is one to which s 1(3) of the CA 1989 applies, including the following provisions:

G is 16 months old. Plainly, in the light of G's age and understanding, his wishes and feelings are not ascertainable. His background is a mixed Lebanese/white British parentage. However, there is no suggestion by the father or the mother that G has ever been considered to be Muslim. Further, he is being brought up in England by notionally Christian foster carers in an effectively secular environment, with the approval or at least complicit acceptance of his parents.

G's physical needs are at present catered for by his foster carers. Circumcision is not required to meet any of his physical needs. His current emotional needs include maintaining his relationship with his foster carers during the adoption process and his sister throughout childhood (and developing a relationship with his half-brother, noting that he is not circumcised). However, once G is adopted, parental responsibility of the mother, father and the local authority ceases and his physical, emotional and educational needs will be met by adoptive parents.

The principle long term benefit which the father argues is that G will be firmly identified with his paternal heritage. However, he has also said G should follow his own path, and has consistently declined himself or through the foster carers to promote or encourage any cultural or religious practices; but by this procedure taking place, this decision would have been made for him.

There is undoubtedly a need for G to be educated about the Lebanese side of his heritage, but as outlined by the local authority this can be done through the life story work and by suitably matched adoptive parents who can support G in understanding his cultural heritage.

Despite the father's belief that circumcision is an important procedure in Lebanese culture, I accept the Guardian’s evidence that G may be profoundly impacted by it as he matures. The procedure is irreversible and would undoubtedly be a change in G's circumstances. It could result in cosmetic inadequacy. I agree with the Guardian's analysis of how circumcision (being a means by which a male child can identify with Lebanese culture but a female child cannot) would mark a difference between the siblings. This may feel unfair and impact on their sense of identity.

I also accept that the local authority is committed to ensuring that both children are exposed to their Lebanese heritage which can be promoted equally for both by means other than circumcision of the male child. As Ms Sutherland accepted, circumcision is ‘one small aspect of a much wider cultural heritage’ and it is not solely the means by which G's cultural identity is enhanced.

Circumcision is a surgical intervention which has no medical basis in G's case. It is likely to be painful and carries with it small but definable physical risks and long term emotional or psychological impact, to which I have referred above. For it to be ordered there would accordingly have to be clear benefits to G which would demonstrate that circumcision was in his best interests notwithstanding the risks. The only benefit identified by the father is that G will be able to identify with his half-Lebanese heritage.

I have also considered the submissions made on behalf of the father in relation to the case of Re P. Mr Bartlet-Jones argued that this case could be distinguished in that there were special guardians to be appointed in Re P who “understand the importance of P’s Muslim heritage, and will honour that as far as it is possible for them to do so” whereas G, on the other hand, only has his current foster carers until an adoptive family is found, with no certainty that they will have any knowledge or interest in Lebanese culture.

I am satisfied on the local authority's evidence that adopters who have gone through the matching process with the support of the adoption agency, will be well informed and competent to deal with issues around culture, and present this in a positive, sensitive way as G matures and is able to make decisions himself. His cultural identity can also be promoted by contact with his half-brother.

Furthermore in G's case, unlike in Re P, final care orders have been made and G will be adopted. Inevitably, this means contact with his birth parents will be limited (if any) and as with any adopted child, the adopters (G’s primary carers) are entitled to have a say in the matter. In contrast, in Re P both parents were practising Muslims and would have ongoing contact with P (albeit neither parent chose to see P or provide age-appropriate learning materials about Islam).

I have considered the differing factors and have come to the conclusion that I should not make an order requiring G to be circumcised. I make it clear that this is a conclusion which I have reached on the individual facts of this case.

I attach little weight to the reasons identified by the father in his application given the conflicting information he has shared about his commitment to a Muslim way of life. I also found the mother's reasons for supporting the father's application on religious grounds to be unconvincing. The father concedes that he is not a practising Muslim and so religious grounds fall away. He now argues that the sole reason for G to be circumcised is that this will preserve his identity, as it is part of Lebanese culture that all males are circumcised. Whilst this is a relevant factor, it does not tip the balance in favour of circumcision when weighed against the other welfare considerations I have referred to above and in the knowledge that G’s half Lebanese identity can be otherwise promoted.

I also find that even though the father did not pursue any arguments in respect of Article 9 of the ECHR, the obligation on this court, as a public authority, requires that I should consider whether there has been any potential breach. I am satisfied that the outcome of my best interests evaluation does not lead to a violation of the father's or the child’s Article 9 rights.

In my judgment it is in in G's welfare interests to defer the decision until G has the maturity and insight to appreciate the consequences and longer term implications of the decision.

I am grateful to counsel for their helpful submissions, and thank Mr Bartlet-Jones in particular for acting pro bono and presenting the father’s case.