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

by Rosalind English

B 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

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). 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). 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. 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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