Male circumcision can be part of “reasonable parenting”, but no form of FGM is acceptable – Family Court

18 January 2015 by

female-genital-mutilation-fgmB and G (Children) (No.2) [2015] EWFC 3 – read judgment

Contemplating the details of different forms of female genital mutilation is not for the faint hearted. But that is what the courts and the relevant experts have to do, not only to protected alleged victims but to defend the interests of those suspected of perpetuating the procedure, whether it is a question of criminal liability under the FGM Act 2003, or determining that a threshold of harm has been passed so as to initiate care proceedings if the victim is a child.

This case concerned the latter; although in the end the court was not satisfied that the evidence was sufficient to satisfy the “significant harm” requirement under the Children Act 1989, Sir James Munby P considered the case sufficiently important to explore the inclusion of FGM, and, more controversially, male circumcision, in the array of cultural and religious rituals that can trigger the state’s intervention in family life.

These were “deep waters” which the judge was “hesitant to enter”, yet, enter them he did, all the better for the clarification of this difficult issue in care proceedings.

Background Facts

The case involved two children, B, a boy, born in July 2010 and G, a girl, born in July 2011. Both the father and the mother come from an African country  though the mother was born and brought up in a Scandinavian country (S). The family are Muslims. The proceedings were commenced in November 2013, triggered by the mother’s seeming abandonment of G in the street. B and G were placed in foster care the same month and have remained with the same foster carer throughout.

The main issue in the proceedings was whether G had been subjected to FGM, and, if she had, what the implications of that were in relation to planning for her and her brother’s future. This was the first time such an issue had been canvassed in the context of care proceedings. Because of the importance of the point, the President of the Family Division confined to the issue in relation to FGM. A separate judgment will deal with all the other issues in the case.

Suspicions that G had been subjected to FGM first arose in November 2012 in country S after blood had been found in her nappy when she was at nursery. She was examined by two doctors who found no damage to her female organs. But the question was raised again in November 2013 when the foster carer reported G’s “irregular genitalia.” This led to the expert investigations that at the centre of these proceedings.

Categories of FGM

There is broad agreement between UK criminal law and the WHO classifications of the major types of FGM

  1.  Clitoridectomy: partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals) and, in very rare cases, only the prepuce (the fold of skin surrounding the clitoris).
  2. Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (the labia are “the lips” that surround the vagina).
  3. Infibulation: narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the inner, or outer, labia, with or without removal of the clitoris.
  4. Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.

Proceedings before the Court

All three experts were agreed that if G had been subjected to FGM (and on this there was a division of opinion), it took the form of a scar adjacent to the left clitoral hood and was therefore WHO Type 4, the least invasive of the procedures. But it was the Local Authority’s position that this constituted “significant harm” within the meaning of section 31 of the Children Act 1989.

Sir James Munby did not pull any punches in criticising the enthusiasm of one of the experts in persuading the court that she had found evidence of FGM:

Whatever her expertise in relation to FGM in pregnant women, in relation to young children it was extremely limited. Her inability in the witness box to provide explanations for matters that cried out for explanation was striking. Her report dated 23 April 2014 was a remarkably shoddy piece of work. A report that says, without further explanation or elaboration, and this is all it said, “It appears that [G] has been subjected to some form of FGM as her vulva does not appear normal”, is worse than useless. In my judgment her report and her oral evidence were well below the standard required of an expert witness. She was not a reliable witness. Her oral evidence was exceedingly unsatisfactory.

He was minded to prefer the evidence of Professor Sarah Creighton, a Consultant Obstetrician and Gynaecologist at University College Hospital, who specialises in paediatric and adolescent gynaecology, reconstructive genital surgery and Female Genital Mutilation.

She was the only one of the three with real experience of FGM in a paediatric context. Her evidence, both written and oral, was clear and measured; it did not change; it was delivered with authority; it carried conviction.

According to Professor Creighton, there was no evidential basis for any finding that G was at risk of being subjected to FGM in future. Interestingly, she dismissed “as a matter of principle” the suggestion that having been subjected to FGM Type IV led to a risk of being subjected in future to further, more serious, FGM (the court gave no explanation as to why there should never be such a risk; this seems rather unintuitive).

Accordingly the judge concluded that the local authority was unable, on the evidence, to establish that G either had been or was at risk of being subjected to any form of FGM.

Cultural and religious circumcision: broader implications

Given the obvious importance of “serious harm”, it was nevertheless appropriate that the Court dealt with it at some length, even though the Local Authority had failed to make out their case in this instance.

Not only is FGM is a criminal offence under the Female Genital Mutilation Act 2003 in this country; it is an abuse of international human rights.  Munby P did not mince his words.

It has no has no basis in any religion. …   it is a “barbarous” practice which is “beyond the pale.”
In Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680, [2005] 2 FLR 1085, Auld LJ (para 1) described it as “an evil practice internationally condemned and in clear violation of Art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.” In the same case, Arden LJ (para 58) described it as “a repulsive practice … deleterious to women’s health.” I entirely agree.

The difficulty that this case arose is that it involved the Type 4  FGM, involving a “lesser” degree of mutilation. That then obliged the Court to consider male circumcision, and the somewhat different approach of the law to this procedure (see Adam Wagner’s post on a 2012 ruling by the Cologne Regional Court that male circumcision could be a criminal assault – translation here).

In contrast to female “cutting”, male circumcision involves

the removal of some, or all, of the prepuce (foreskin), the retractable fold of skin that surrounds and covers the glans of the penis, so as to expose the glans. [the procedure removes] a significant amount of tissue, creates an obvious alteration to the appearance of the genitals and leaves a more or less prominent scar around the circumference of the penis. Apart from the removal of the foreskin, and sometimes of the frenulum, the ligament that connects the foreskin to the glans, the genitals are left intact.

On any view, FGM of WHO Types 1, 2 and 3 are all very much more invasive than male circumcision. Type 4 is a trickier comparison. Suffice it to say, however, that there is some basis – however equivocal – for thinking that male circumcision has some hygienic or prophylactic benefit. This is what the WHO has to say about the difference between FGM and  male circumcision:

These procedures are linked to extensive and in some cases lifelong health problems. The immediate complications include severe pain, shock, haemorrhage, tetanus or sepsis, urine retention, ulceration of the genital region and injury to adjacent tissue. Haemorrhage and infection can be of such magnitude as to cause death. Moreover, the WHO collaborative prospective study in six African countries on female genital mutilation and obstetric outcomes, published in June 2006, showed that deliveries to women who underwent FGM (all types considered) were significantly more likely to be complicated by Caesarean section, postpartum haemorrhage, episiotomy, extended maternal hospital stay, resuscitation of the infant and hospital inpatient perinatal death than deliveries to women who have not had FGM. FGM is estimated to lead to an extra one to two perinatal deaths per 100 deliveries

Whereas …

To date, there is modest evidence of risk compensation following adult male circumcision (Male circumcision: global trends and determinants of prevalence, safety and acceptability, WHO, 2007)

There is nothing in the case-law to suggest that male circumcision is, of itself, such as to justify care proceedings. On the contrary, judges in the Family Division have on occasions made orders providing for non-therapeutic circumcision: see, for example, Re S (Change of Names: Cultural Factors) [2001] 2 FLR 1005, 1015-1016 (T v S (Wardship) [2011] EWHC 1608 (Fam), [2012] 1 FLR 230, was a case of a medically indicated circumcision).

The difference between FGM and male circumcision, pace the those who campaign to criminalise the latter, is shown up in particularly stark relief in this case. As Munby P says, there was no suggestion, nor could there be, that B’s circumcision could or should have given rise to care proceedings.

In 2015 the law generally, and family law in particular, is still 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

The fact of the matter is that unless FGM in all its forms – including the “less invasive” type 4 – is treated as constituting significant harm, local authorities and other agencies, and indeed family courts, may be “very significantly hampered” in their ability to protect vulnerable children. And in Munby P’s judgment, any form of FGM constituted “significant harm” within the meaning of those provisions. The difficulty with this conclusion of course is that, given the more invasive procedure involved in male circumcision as opposed to the less invasive FGM type 4, it follows that, if Type 4 amounts to significant harm, then the same must be so of male circumcision. But there is a significant factor that comes into play here. Whereas it can never be “reasonable parenting” to inflict any form of FGM on a child, the position is quite 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. There are, after all, at least two important distinctions between the two.  FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision.

The only conclusion that court could reach therefore was that although both involve significant harm, there was “a very clear distinction” in family law between FGM and male circumcision. FGM in any form would suffice to establish ‘threshold’ in accordance with section 31 of the Children Act 1989; male circumcision without more would not.

Munby P had one final observation to make. Given that in this area, as in most others, prevention was infinitely better than cure, local authorities need to be more pro-active and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM. Courts must not hesitate to use “every weapon” in their protective arsenal if faced with a case of actual or anticipated FGM.

Given what we now know is the distressingly great prevalence of FGM in this country even today, some thirty years after FGM was first criminalised, it is sobering to reflect that this is not merely the first care case where FGM has featured but also, I suspect, if not the first one of only a handful of FGM cases that have yet found their way to the family courts. The courts alone, whether the family courts or the criminal courts, cannot eradicate this great evil but they have an important role to play and a very much greater role than they have hitherto been able to play.

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  1. Andrew says:

    The fact is that many opponents of male circumcision (like opponents of kosher and halal meat) are profoundly anti-Semitic and anti-Muslim.

    1. Hugh Young says:

      It would be remarkable if none were, but “many”? How many? You might add “and female genital cutting” and so what? Should we hate animals because Hitler loved them?

      There is a small but growing movement within Judaism to name boys without cutting them. Here are contact details for celebrants of such Brit Shalom rites, including more than 100 rabbis:

    2. Cees van der Duin says:

      Beyond the Bris
      News and views on Jewish Circumcision

      “Beyond the Bris was launched in 2010 as a unique web forum for Jewish people who question male infant circumcision. We also reject the sexual cutting of female children for religious or cultural reasons.”

  2. Edward von Roy says:

    Thank you very much, Hugh Young, you are right, FGM is Islamic.

    Judge Sir James Munby can know that the circumcision of girls is religion, part of several hadith and many fatwa. The Fiqh (Islamic Jurisprudence) of Shafii madhhab and many Ulama of Hanbali madhhab regard FGM as wajib, i. e. as a religious duty. So khitan al-inath (sunat perempuan; FGM) is part of authentic Islam.

    Hadith. Muhammad said to the muqaṭṭiʿa al-buẓūr (cutter of clitorises) Umm ʿAṭiyya:

    أشمِّي ولا تنهكي
    ašimmī wa-lā tanhakī
    [Cut] slightly and do not overdo it

    اختفضن ولا تنهكن
    iḫtafiḍna wa-lā tanhikna
    Cut [slightly] without exaggeration

    Today several Muslim clerics promote a “mild sunnah” circumcision; who tells Judge Munby about this fatwa: What is the Ruling on Circumcision for Women?

    Circumcision is obligatory upon men and women according to us (i.e. the Shafi’is). (Majmu’ of Imam An-Nawawi 1:164) The circumcision is wajib upon men and women according to the rājih qawl of Shāfi’ī madhhab. Answered by: Sidi Abdullah Muḥammad al-Marbūqī al-Shāfi’ī. Checked by: Al-Ustāż Fauzi ibn Abd Rahman

    My real concern is that Europe will soon legalise some “mild” forms of the Classification of FGM.

    Every form of FGM or MGM should be banned everywhere.

  3. Hugh Young says:

    ” There are, after all, at least two important distinctions between the two. FGM has no basis in any religion; male circumcision is often performed for religious reasons.”

    Wrong. FGC is carried out in the name of Islam (even though Allah himself is silent) across the Middle East and Indonesia, Malaysia and Singapore.
    “Those who advocate for FGM from an Islamic perspective commonly quote the following hadith to argue that it is required as part of the Sunnah or Tradition of the Prophet:
    ‘Um Atiyyat al-Ansariyyah said:
    A woman used to perform circumcision in Medina.
    The Prophet (pbuh) said to her:
    Do not cut too severely
    as that is better for a woman
    and more desirable for a husband’.” 1,8
    Notice that the Prophet himself reportedly advocated minimal FGC, comparable to MGC.

    “FGM has no medical justification and confers no health benefits;”
    Wrong. Stallings et al. found less HIV in circumcised women in Tanzania. But this is a self-fulfilling prophesy. Nobody has found any health benefits because nobody has been looking for them. If FGC had caught on in the 19th century as MGC did (and thereby hangs a tale), you can be sure that “health benefits” would have been sought as avidly, and “found”. as they have been for MGC.

    “male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision.”
    What is he saying but that it is permitted because it is permitted?

  4. Randy says:

    There is not “male” or “female” mutilation. There is just “mutilation” and it should be judged with uniform guidelines. Anything else is pure sexism.

  5. wagaba1 says:

    Despite of the length this article has gone to explain in detail the reasoning of Sir Manby, I find it shocking that there are still some deniers who disagree with this plain and sobering explanation

  6. Rerun says:

    “it would be “irrational” to dispute the fact that male circumcision can be more harmful than Some forms of FGM” a High Court judge said:

    Genital mutilation is no “what’s worse” contest and no, it never can be a part of “reasonable parenting”.

  7. Ronald Goldman, Ph.D. says:

    Cutting female and male genitals are similar. 1) It is unnecessary and extremely painful. 2) It can have adverse sexual and psychological effects. 3) It is generally done by force on children. 4) It is generally supported by local medical doctors. 5) Pertinent biological facts are not generally known where procedures are practiced. 6) It is defended with reasons such as tradition, religion, aesthetics, cleanliness, and health. 7) The rationale has currently or historically been connected to controlling sexual pleasure. 8) It is often believed to have no effect on normal sexual functioning. 9) It is generally accepted and supported by those who have been subjected to it. 10) Those who are cut feel compelled to cut their children. 11) The choice may be motivated by underlying psychosexual reasons. 12) Critical public discussion is generally taboo where the procedure is practiced. 13) It can result in serious complications that can lead to death. 14) The adverse effects are hidden by repression and denial. 15) Dozens of potentially harmful physiological, emotional, behavioral, sexual, and social effects on individuals and societies have never been studied. 16) On a qualitative level, cutting the genitals of male and female children are the same.

  8. John Allman says:

    What does one expect? The vile poison of feminism has permeated the entire body politic. Feminism is properly defined as pretending to strive for the equality of the two sexes by concentrating on one of them to the exclusion of the other, and conferring unfair advantages up the favoured sex. The kneejerk editorialising in certain organs of the press over the past few days, has been to lie about the policies of the new political party Justice For Men and Boys (which is demanding that MGM and FGM are treated alike), characterising the party’s members and supporters as “misogynists”, despite the large number of anti-feminists who are female, but who have managed not to be stupid enough with it to be taken in by feminism’s hate speech.

    Of course MGM of boys doesn’t matter, in the eyes of the feminist state. Its isn’t “violence against women and girls”, is it?

  9. Lofthouse says:

    Still fudging over male circumcision as a Human Rights violation then….

  10. Andrew says:

    Why was it necessary for the judge to mention male circumcision which was not at issue in this case?

    1. John Allman says:

      Absent clarification that we might have hoped for from Rosalind English, as to why Munby went all *obiter dicta* on us like this, and bearing in mind that causality is a more complicated subject that materialist determinism would have use believe, perhaps what used to be called the “providence” of God was at work.

      Munby wasn’t to know this, but there has recently been discussion on the Grauniad’s hate blog, about FGM, from which comments by those scores of would-be commenters equally opposed to MGM have been routinely censored, regardless of whether their censored comments conformed to the Graudiad’s so-called “community standards”.

      More-or-less immediately afterwards, J4MB, the political party still officially called “Justice for Men and Boys (and the women who love them)” published its manifesto, which calls for equal protection of male infants at risk of MGM as is presently afforded to female victims of FGM. The Graudiad and, a surprising bedfellow, the Torygraph, have both (between them) since attempted straw man hatchet jobs, heaping pop-psychology analyses upon the leadership of J4MB, which have invented fictitious manifesto policies (straw man style), but which have refrained from even refuting those fictitious J4MB policies, preferring instead to insult (as, for example, “misogynistic”) the highly rational and gender-egalitarian agenda of J4MB and its leadership.

      God, in his sovereign providence, seems to have ordained that old Munby should have gone off on this tangent of his, unaware as to just how topical it was about to become.

      If you listen to Radio 4 and BBC World Service for a week, and count how many dozens or hundreds of time you hear the phrase “women and girls”, and how seldom, if ever, you hear the phrase “men and boys”, you have a chance of learning quickly the nature of the gender war, in which Munby is no hero, but who at least hadn’t got a conscience so seared that it would have violated his free will, for the common grace of the Holy Spirit thus to have cajoled him into saying something sensible for a change, at this potential turning point of history, which has turned out to be mighty topical, even if what he said was strictly obiter dictum when he said it.

    2. Hugh Young says:

      Because two children were involved, male and female, and there was a question of putting them both in custody, because the girl might have been cut. The judge refused to treat the possible cutting of the boy as a non-issue. It’s a step forward that he calls male genital cutting “significant harm”. A senior lawyer calls it “The Assault We Ignore”.

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