Circumcision in law: parents disagree
In re J
An important British case
J's father is a Turkish Muslim, his mother is British. The father wanted him brought up as a Moslen and circumcised, the mother took the father to court to prevent that, and won on both issues. Here are some significant quotes from the judgement of Wall J, delivered in England on May 6, 1999.
- Where there was disagreement between those who had parental
responsibility for the child, including a local authority
exercising parental responsibility under a care order,
circumcision was not to be carried out without the leave of the
- The question of the father taking J to Turkey on holiday is,
however, linked with the question of his circumcision. If I
decide that J should not be circumcised, the question arises as
to whether or not the fatherís family and/or a Turkish court
would accept that decision and feel themselves bound by it. The
father assured me in evidence that he would respect the English
courtís decision, however much he might disagree with it, and
would not seek to have J circumcised in Turkey. The father also
recognised that if J returned from Turkey circumcised that would
constitute a clear contempt of the English court.
- It is, therefore, clear to me that in Islamic law, J is to be
regarded as a Muslim.
- [On circumcision in Islam] According to Dr Hinchcliffe,
circumcision is not mentioned in the text of the Koran, but in
the Sunna (the practice of the Prophet Mohammed), which is the
second recognised source of law, it is strongly recommended, and
sayings from the Prophet himself are cited in support of the
- The only judicial reference which counsel were able to find in
relation to male circumcision is a dictum of Lord Templeman in R
v Brown (Anthony)  1 AC 212 at 231, 2 All ER 75 at
78-79, which is clearly obiter [not binding].
- J is plainly not in a position to give an informed consent to
- There is also...a body of medical opinion which regards both
male and female circumcision as invasive procedures involving
unnecessary mutilation of the genitals, and which calls for male
circumcision to be criminalised, except in the rare cases where
it is medically called for.
- A case can be made for describing ritual male circumcision
without any medical need for it as an assault on the bodily
integrity of the child; indeed, that is the case which is made
in much of the medical literature to which I was referred.
- ...if J were to be circumcised this could be carried out as a
day case. J would be likely to be unconscious for about 20 to 30
minutes. It would be a painful procedure...
- The medical benefits arising from circumcision (apart from the
three conditions identified by Dr S for which surgery is
indicated) are highly contentious.
- There is a powerful body of medical opinion which puts strongly
in issue any suggestion that male circumcision prevents or
reduces the risk of urinary tract infection, penile cancer, or
sexually transmitted disease. Equally contentious is the
suggestion that it reduces the incidence of cervical cancer in
- There is evidence that tissue loss during circumcision removes
or destroys the function of tissue which plays an important part
in the overall sensory mechanism of the penis, and that there is
a consequential loss of sexual sensory pleasure during sexual
- Dr Sís view, as a paediatrician, was that circumcision should
only be carried out if medically indicated.
- I should add, in parenthesis, that amongst the documents shown
to me was material from an organisation called Norm UK, the aims
of which are to provide education about (1) the need to avoid
circumcision and (inter alia) (2) about foreskin restoration.
Within this material was an article on foreskin restoration
which indicates that it is possible, although restoration cannot
give back the erotogenic nerves amputated at circumcision.
Equally, there was nothing in the medical evidence I read and
heard which indicated that J could not be circumcised as an
- The father simply could not understand the objections to
circumcision. It was a means of demonstrating and reinforcing
Jís relationship with him: they had to be the same.
- The procedure for a child of Jís age carries small but
identifiable physical and psychological risks. It is an invasive
procedure, which therefore carries with it risks shared by all
surgical interventions: pain, bleeding, infection, surgical
mishap and complications of anaesthesia.
- The father did not accept the risks, either physical or
psychological, outlined in the medical evidence by Dr S and I
have to say that, despite his obvious sincerity, there was an
element of exaggeration in the fatherís account of his own
circumcision (no doubt as a result of the passage of time), and
in my judgment he minimises its painful aspects and
underestimates the likely effect of the procedure on J.
- In my judgment, and with all due respect to the skilful
presentation of his case by his legal team, the father was his
own best advocate on this issue.
- 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.
- The disadvantages are that despite the fatherís passionate
defence of the procedure, J may be traumatised by it...
- Thus, contrary to the fatherís perception, circumcision may in
fact weaken rather than strengthen his relationship with J.
- Circumcision carries with it the small but definite risks of
both physical and psychological harm to which I have referred.
Furthermore J, as a circumcised child, would undoubtedly be
different from the majority of his peer group. The consequential
possibility that he may be picked on or teased by his peers
cannot be excluded as a risk.
- I think that, because of his strong feelings and the passage of
time, the father minimises the pain and discomfort likely to be
suffered by J if the operation is performed.
- Circumcision is an effectively irreversible surgical
intervention which has no medical basis in Jís case. It is
likely to be painful and carries with it small but definable
physical and psychological risks.
- Under art 9 [of the Human Rights Act 1999], the father says that
his right to manifest his religion in practice includes the
right to arrange for the circumcision of his son in accordance
with the tenets of his religion. That seems to me plainly
correct. It follows that any limitations on that freedom imposed
by a court must be (1) as are prescribed by law; and (2) as are
necessary in a democratic society for the protection of the
rights and freedoms of others - in this case, the rights and
freedoms of both the mother and J himself...I therefore see
nothing inconsistent with the proper operation of arts 8 and 9
of the Convention in a decision of the court which, on the
particular facts of this case and in the exercise of a judicial
discretion, refuses to make a specific issue order permitting
Jís circumcision, alternatively prohibits the father from
causing J to be circumcised...Equally, given the balance which
the court has to strike between the competing rights of the
mother, the father, and the child, it does not seem to me that
an order prohibiting circumcision in the circumstances of this
case could properly be described as discriminatory under art 14.
- In my judgment, the argument put forward by the Official
Solicitor on this point is sound. Circumcision is an irrevocable
step in a childís life...Changes of surname, which require
applications to the court in cases of disagreement are
reversible: circumcision is not. In my judgment, therefore,
where there is a dispute between parents or other persons having
parental responsibility for a child over the childís
circumcision, that dispute should be referred to the court...
For all these reasons, there will be no order on the fathers application for J to be brought up as a Muslim and there will be a prohibited steps order preventing the father from arranging or permitting J to be circumcised
without the leave of the High Court. I propose to invite counsel to agree the precise terms of the order.
Order accordingly. Leave to appeal granted.
Re J (child's religious upbringing and circumcision)
FAMILY DIVISION, Judge WALL J,
2, 3, 4 MARCH, 6 MAY 1999
The striking thing about this case is that all the arguments against circumcising J. would apply equally well even if both parents agreed that he should be circumcised and consequently to all cases of involuntary infant and child circumcision.
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