UK court ducks position on circumcision

by Rosalind English

SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 – read judgment

This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.

This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law.

In this case, by contrast, it was the very fear of Islamic practices which drove the complaint: the mother argued that if she were forced to return to Malaysia, her son would be at risk of circumcision, a procedure sanctioned by Islam, to which the father had converted some years previously.

The fact that the appellant lost says less about the question of religious faith than the reluctance of courts to impose Western views on other religious and cultural practices. The contracting states to the European Convention on Human Rights do not “undertake to alleviate religious and cultural differences between their own laws and the family law of an alien’s country of origin, however extreme their effects might seem to be on a family relationship”. (Lord Hope in EM, para 14)

This means, in effect, that aliens who are subject to expulsion cannot claim an entitlement to remain in the territory of a contracting state in order to benefit from the equality of treatment as to respect for their family life that they would receive there which would be denied to them in the receiving state.

Background facts

The appellant and her husband were Roman Catholics and their six year old son (C) had also been brought up as a Catholic. While the appellant and her son were visiting her sister in the United Kingdom, the husband converted to Islam. The mother claimed asylum on the grounds that if she were returned to Malaysia, she would be arrested and risk ill-treatment from her husband, who would also insist that C be raised as a Muslim and be circumcised.

She submitted that to deny her the opportunity of teaching C about her own religious faith was a “flagrant” breach of her right to respect for her private and family life under Article 8 of the European Convention on Human Rights and of her right under Article 9 to practise her religion (flagrancy being a base-line requirement for resisting immigration controls). Whilst she acknowledged that circumcision need not violate a child’s rights in the context of loving family relationships and where supported by both parents, the appellant was strongly opposed to the procedure and maintained that it would not be in C’s best interests to return him to Malaysia where his father’s wishes would prevail over her own. She also contended that the tribunal below had failed to consider C’s best interests except in its assessment of proportionality.

The Court of Appeal dismissed the appeal.

Reasoning behind the judgment

A restriction on the appellant’s ability to share her Christian faith with her son did not undermine their family life, nor it amount to a denial of her right to practise her own religion. This case was distinguished from the House of Lords’ ruling in EM because in that case returning the appellant and her child to a Sharia law system under which custody passed automatically to the father would destroy their family life together.

As for the circumcision question, it was unnecessary to decide whether the procedure could infringe a child’s rights under Article 3 or Article 8 as the first instance tribunal had found that C would have the positive emotional support of his father and would be conforming to the broad expectations of his culture, both significant factors. Indeed, Moore-Blick LJ found it “difficult to see how C’s circumcision would involve any infringement of the appellant’s Convention rights”

The decision of the First-tier Tribunal was not seriously flawed as, leaving aside C’s religious upbringing, it was obviously in his best interests to be brought up by both parents. The appellant’s real complaint was that the Malaysian courts resolved disagreements over the religious upbringing of children in a different way, which she found uncongenial, but there was no denial of her rights or those of C, nor was removal contrary to his best interests.

Comment

Male circumcision is a widespread religious and cultural practice which has ancient origins…it is regarded as an acceptable practice among communities of all kinds, provided it is carried out under appropriate conditions. [14]

Slavery, capital punishment, racial or gender discrimination and many other practices are also widespread and sanctified by ancient tradition: the obvious riposte is that neither popularity nor antiquity shield such institutions from scrutiny by the Human Rights Convention or other international instruments. It is interesting that no mention was made in this case of the widely-covered German regional court ruling on circumcision, where the court paid particular regard to the fact that circumcision led to the child’s body being “permanently and irreparably changed” and that it could affect his own religious interests later should he decide, for example, not to be a Muslim (see Adam Wagner’s post with its link to the English translation of the ruling). In that case the Cologne Regional Court decided that

The circumcision of a boy unable to give medical consent, correctly performed by a doctor for religious reasons with the consent of the parents, is not excluded from the definition of the offence [in German law of assault]…the occasioning of the circumcision by the parents has no effect of justification, since the parents’ right to religious upbringing of their children, when weighed against the right of the child to physical integrity and to self-determination, has no priority, and consequently their consent to the circumcision conflicts with the child’s best interests.

This judgment very much bears out Adam’s prediction in his analysis of the German case that the Strasbourg Court, and, for similar reasons, the UK courts,

would be wary of making a controversial ruling on such a controversial issue over which there is clearly no European consensus (arguably, the current consensus is that religious circumcision is justifiable).

In many ways, this case is on all fours with A Mother v. A Father [2012] , not an immigration case but a custody dispute. It will be remembered from David Hart’s post that this litigation arose out of a background of secular Judaism, with little if no religious observance, until the father converted to Christianity, after the marriage was in effect at an end. The only significant difference between that case and this was that the child herself had opted for a religious conversion.

David posits at the end of his discussion of this case this question.

let us assume that some dispute had arisen between experts about how baptism would impact on Judaism or indeed any other faith. What then? It seems as if the Courts would then have to decide such doctrinal disputes if they were relevant to the welfare of the child – despite the religious no-go area identified in my previous post.

The appellant mother in this instant case was, in effect, asking the court to take a position on a doctrinal matter: the centrality of the circumcision procedure to Islamic observance. And it balked at the challenge, because doing so would get it embroiled in the controversy over rival religious practices. Was it right to do so? Yes, because religious experience should be inviolately private and therefore out of place in a public forum. No, because in a case where religion touches on a child’s interests, and the welfare of children is meant to be a paramount consideration, the courts are under a duty to square up to the issue, even if it is normally kept under wraps. If circumcision is one of the sharp demands placed on the child by religious faith, it should be scrutinised with the same rigour as any other practice which affects the interests of the child.

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