Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
In the Matter of: Re U (Child) [1999]

In the Matter of: Re U (Child) [1999]

Ratings: (0)|Views: 5|Likes:
Published by Fuzzy_Wood_Person
Case concerning the proposed circumcision of a child to a British mother and a Muslim father
Case concerning the proposed circumcision of a child to a British mother and a Muslim father

More info:

Categories:Types, Business/Law
Published by: Fuzzy_Wood_Person on May 17, 2013
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as ODT, PDF, TXT or read online from Scribd
See more
See less

03/26/2014

pdf

text

original

 
FAFMI 1999/0618/2Neutral Citation Number:
[1999] EWCA Civ 3022IN THE SUPREME COURT OF JUDICATUREIN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE WALL)Royal Courts of JusticeStrandLondon WC2Date: Thursday 25 November 1999B e f o r e:
THE PRESIDENT(DAME ELIZABETH BUTLER-SLOSS)LORD JUSTICE SCHIEMANNLORD JUSTICE THORPE
- - - - - -
I N T H E M A T T E R O FRE U (CHILD)
- - - - - -(Computer Aided Transcript of the Palantype Notes of Smith Bernal Reporting Limited, 180 Fleet Street,London EC4A 2HDTel: 0171 421 4040Official Shorthand Writers to the Court)- - - - - -
MISS L J KUSHNER QC
and
MR HUMPHREY
(Instructed by Messrs Metcalfe Wright & Platt,Stockport, SK4 4DT) appeared on behalf of the Appellant/Father 
MR D HARRIS QC
and
MISS H MATUK
(Instructed by Messrs Berry & Berry Cocker, Smith & Co,Manchester, M28 3JB) appeared on behalf of the Respondent/Mother 
MR M NICHOLLS
(instructed by the Official Solicitor, London WC2A 1DD) appeared on behalf of theGuardian ad Litem- - - - - -
J U D G M E N T
1.
THE PRESIDENT
: I will ask Lord Justice Thorpe to give the first judgment.2.
LORD JUSTICE THORPE
: On 23 April 1999 Wall J gave a reserved judgmentrefusing a father’s application for a specific issue order that his five year old son becircumcised. No earlier application raising this issue is known and, accordingly, he gavepermission to appeal to enable the father to bring his case to this court.3.The judge’s factual summary could not be bettered. What follows is all extractedfrom his judgment at points between pages 3 and 8. I quote:“The father is 27. He is Turkish by birth and upbringing, and retains his Turkishnationality, although he is permanently resident in the United Kingdom and also
 
has a British passport. He is a Muslim, although, as he freely accepts, he doesnot actively observe many of the tenets of his faith.The mother is 29. She is English and, apart from a short period around the timeof her marriage to the father when she lived with him in Turkey, she has livedthroughout her life in England. She is notionally a Christian and a member of the Church of England but, like the father, she is non-practising.The parents met whilst the mother was on holiday in Turkey in the Summer of 1992. Later that year she returned to Turkey, and she and the father weremarried in Turkey on 18 November 1992. It was a first marriage for both of them.The father says that whilst the mother was pregnant with J she gave her agreement that any male child would be circumcised. I accept that evidence.Following the parents’ return to England from Turkey in February 1993, themarriage, despite the birth of J in March 1994, did not endure, and theyseparated on 29 September 1996 when J was aged two and-a-half.J is five and attending a local state primary school. He is being brought up in anessentially secular household. The only contact he has with Islam is through hisfather. The mother has no Muslim friends and no connections with anymembers of the Muslim community. The father, likewise, does not appear tohave Muslim friends or mix in Muslim circles.”4.Against that factual background, the judge then posed the question: what is J’sreligion? He answered it thus, adopting a submission made by his Guardian
 
ad litem, theOfficial Solicitor. I quote:“In English Law, therefore, J would seem to be being brought up as a‘non-practising Christian’ in accordance with the convictions of his mother withwhom he lives and as a non-practising Muslim when he stays with his father. Hetherefore has a mixed heritage and an essentially secular lifestyle. He does nothave a settled religious faith.”5.The judge turned to decide, first, a substantial issue as to whether the mother should be required to bring J up as a Muslim; an issue which is no longer live in this courtsince both parties accept the judge’s pragmatic resolution under which the father is freeduring periods of contact to deal with this aspect in his own way.6.The judge’s approach to the dispute over circumcision was characteristicallythorough. He considered the lawfulness of ritual male circumcision, concluding that it waslawful for two parties jointly exercising parental responsibility to arrange the ritual circumcisionof their male child.7.The judge then recorded medical attitudes to ritual circumcision, having heardevidence from a consultant pediatrician and having read the GMC and BMA guidelinessupplied by the Official Solicitor. He concluded that current mainstream medical opinionrequires both parents’ consent and, particularly, maternal consent when the father lacksparental responsibility. Additionally, he recorded in the consultant’s report that circumcisionwas not medically indicated for J since he did not suffer from any of the three medicalconditions that can make circumcision either necessary or advisable. He also accepted the
 
consultant’s advice that:“The procedure is not pain free and there are potential risks both physical andpsychological, which may be small but which are nonetheless definite.”8.The judge’s summary of the submissions of the parties is full and in many waysfavourable to the father. I need quote only this sentence:“By comparison with what I have to say was the mother’s pallid andunconvincing statement of her religious beliefs, the father’s passionate plea for Jto be given his proper identity as a Muslim and for him to be thereby enabled toidentify fully with his father was impressive.”9.In an important section, the judge considered the likely effects on J of beingcircumcised. There, he made these significant findings:“In Turkish society, a Muslim male child’s peers will all be circumcised: in thecircles in which J will grow up, he is likely to be in a small minority and he willnot have the reassurance that all his contemporaries have been through -- or will go through -- the same experience.The incident I have described also makes it clear to me that the mother, as J’sprimary carer, would find it extremely difficult to present the question of circumcision to J in a positive light, and unlike ritual circumcision occurring in thecontext of a Muslim family, where the event would be one of celebration andfulfillment, J’s circumcision would be likely to be surrounded by tension andstress, even though the mother was able to agree with the father’s counsel incross-examination that she would, of course, care for J after the operation andwould have no difficulty changing dressings.In my judgment the strained relationship between the parents, and the fact thatas a circumcised child J would be unlike most of his peers, increases the riskthat J will suffer adverse psychological effects from being circumcised.”10.Against that background, Mr Justice Wall stated his conclusions, marshalling themby reference to the statutory checklist in section 1(3) of the
Children Act 1989
. However, hepreceded that exercise with this concise passage:“The major benefit is that J will thereby be firmly identified with his father, andconfirmed in the eyes of Islam as a Muslim. However his circumcision would notbe part of a family celebration, and he would not, thereafter, be brought up in aMuslim family environment.The disadvantages are that despite the father’s passionate defence of theprocedure, J may be traumatised by it; he will, moreover, be living in thehousehold of his mother, who disagrees with the procedure, and will find greatdifficulty in presenting it to J in a positive light.”11.Finally, in refusing the application, the judge stressed that his conclusion was finelybalanced and depended on the facts as he had found them. He summarised the factors whichhad influenced his conclusion in the following four numbered paragraphs:“(1) Although born a Muslim, it is clear to me that J is going to have anessentially secular upbringing in England. He is not going to mix in Muslimcircles, and his main contact with Muslims and the Muslim ethos will be his

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->