England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT WREXHAM

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A (A CHILD)

		3rd March 2015

HIS HONOUR JUDGE GARETH JONES:

1. I have before me a number of applications which concern a child I shall identify only as A in the course of this judgment, who was born on 7^th August 2008 and he is therefore approximately six and a half years of age.
2. The parties to the application and their legal representation is as follows:

the Local Authority (who I shall identify only as X Local Authority) are represented by Miss Acton;

the child is represented by his Guardian Miss Williams and by his solicitor Miss Newman. They were both present in court up to yesterday.

the parties (who I shall identify only as 'the mother' and 'the father') appear before me in person. The father, who is of Bangladeshi origin, was assisted by an interpreter. The mother, who is British, also assisted the father with any linguistic difficulty. Both parents were present in Court during this hearing up to yesterday.

3. I announced my decision yesterday, when I dictated the terms of the Court's Order, and I said that I would give reasons for my decision in a judgment to be delivered today.
4. I have made arrangements for the judgment to be translated at public expense and copies will be released to all parties including the father, who can thereafter arrange for a translation of the judgment himself so that he can understand the reasons for this decision.
5. Yesterday (2^nd March 2015), I heard evidence from the Key Social Worker in the case, Miss Annetts. I heard evidence also from the father by an interpreter and I heard evidence from the child's Guardian. I have read and considered all the relevant Court papers which have been included in the trial bundle.
6. All of the parties were present in Court yesterday. Today (3^rd March 2015), it is only the Local Authority who is represented and the attendance of all other parties was excused by me, although of course if they wished to attend they were perfectly entitled to do so but obviously with the provision of the transcript they have chosen not to attend Court voluntarily today.
7. The Court is considering the following applications:

(i) there is an application by the Local Authority for an Order under section 34(4) of the Children Act giving the Local Authority permission to refuse direct parental contact;

(ii) there is also an application by the parents within these existing proceedings under section 7(1)(b) of the Human Rights Act 1988 for a declaration/injunction whereby firstly the Local Authority should arrange for the medical circumcision of A, and secondly the Local Authority should make other arrangements for the religious upbringing of A as a Muslim child.

8. The parents, who have only recently filed these applications, have referred not only to A but also to A's siblings. I have indicated that I will only be considering A's circumstances during the course of this hearing and judgment. If the parents wish to apply with regard to A's siblings, then they should issue a free-standing application under the Human Rights Act 1998 in relation to them.
9. The Local Authority and the Guardian have only received proper notice of the application relating to A and it would be unfair to expect this application to be dealt with on a broader basis without sufficient opportunity given to the Local Authority and the Guardian to respond with regard thereto. Delay of this application in A's case is not justified in these circumstances.
10. The Local Authority's application under section 34(4) of the Children Act 1989 is supported by the child's Guardian and opposed by the parents. The Guardian and the Local Authority are opposed to A's circumcision. The Local Authority contend that they have not changed A's religion and they are giving appropriate recognition to his religious/cultural heritage and the Guardian supports the Local Authority in this respect. The parents, of course, disagree with this contention.

The background to this application

11. As I have said already, A is part of a sibling group. This sibling group comprises four children, all of whom were taken into Local Authority care. Apart from A, there is M who was born in 2007 and placed with Local Authority foster carers; R born in 2009, who has been adopted; N born in 2010, who has been placed with Local Authority foster carers; and A himself is also with Local Authority foster carers separate from his siblings.
12. In A's case, the Final Care Order was made together with a Placement Order, on 8^th March 2012. Because of his behavioural and other difficulties, the Local Authority has not been able to place A with prospective adopters. The Placement Order in A's case was revoked in 2014. An Interim Section 34(4) Order has been in place since the revocation of the Placement Order. The case was originally timetabled for a hearing at the end of the last year, but had to be adjourned due to the absence of a court interpreter and it was re-timetabled for this hearing.
13. Briefly by way of a summary of the background, the children were originally accommodated in August 2010 and they were subject to Interim Care Orders from November 2010. The father was convicted of an assault upon A in December 2010. Subsequently, the children were placed with the mother in a Mother & Baby foster placement. There were non-accidental injuries which I found to be attributable to the mother, and she was subsequently convicted of neglect under the Children and Young Persons Act 1933.
14. Within the trial bundle there is a transcript of my judgment dated 9^th January 2012, which deals with the Finding of Fact hearing in relation to the mother. There is a separate transcript of a judgment dated 7^th March 2012, when I considered the Care and the Placement applications.
15. The parents 'farewell' contact with A was in March/April 2012, nearly three years ago. There is provision for indirect contact, which is rarely if at all utilised by the parents. The parents (I was told) do generally attend the LAC Reviews, apart from the most recently conducted in January 2015.
16. The basis of the Local Authority's application under section 34(4) of the Children Act 1989 is the expert evaluation of a clinical psychologist Dr Nick Jones, and there is no expert evidence which contradicts this evidence before me. Dr Jones has also made arrangements for A's therapeutic work, which commenced in June 2014 by way of dyadic developmental psychotherapy and A's current foster carers, Mr and Mrs J, have also been part of this programme of work.

The evidence in this case

17. Dr Jones' evidence is contained firstly in his report dated 13^th May 2013 (see section C of the trial bundle) which identifies A's difficulties thus:

"Dyadic assessment of interactions with his birth parents and detailed history and reports from his current placement indicates that A has severe insecurities known as Attachment Disorder. His pattern is consistent with a disorganised attachment style. Children who have experienced attachment trauma or neglect have been shown to have heightened levels of anxiety and also to have impaired cognitive activity and impaired development of parts of the brain. When children experience secure and safe care, the aim is to help repair or help aid recovery from these neurological deficits. Attachment disorders arise from early childhood developmental trauma or neglect from key attachment figures such as birth parents."

18. Dr Jones goes on:

"Children with disorganised attachment patterns generally struggle to know how to manage closeness, feel unsafe receiving personal care, feel overly-responsible for managing situations/events, have difficulty coping in a new setting or meeting new people, and can show sometimes bizarre reactions and be highly challenging to support when anxious."

19. Dr Jones goes on:

"A has shown significant levels of fear around personal care, water, being left alone and having to share a carer's time with someone else. He was also noticeably more anxious when two carers were present in the room. This pattern would indicate that his parents have had significant difficulties in creating a safe environment."

20. Dr Jones goes on:

"Since contact has ended and he (i.e. A) has had permanency with the J's, he has made significant progress in speech, reasoning, emotional regulation, self-soothing and ability to playful states. Given this history, I have significant concerns about the impact on A of reintroducing contact with his parents. They have repeatedly demonstrated difficulty in meeting his needs. A's reaction to carers or new attachment figures would indicate that his parents have been instrumental in creating distress and fear. If there is evidence that his parents are no longer a threat to A, emotionally or physically, they would in my opinion also need to be able to undertake significant therapeutic repair to make sense of the past neglect and abuse. Despite being in a secure setting now, reintroducing unsafe figures into A's life would increase his anxiety and distress. He may wonder whether his place with the J's is temporary again. Increasing his distress and anxiety would undermine his cognitive and general developmental progress. It might cause so much upset that the current placement is put at risk."

21. Dr Jones (in a supplemental report dated 29^th September 2014) confirmed that A has been offered (together with his foster carers) the dyadic developmental psychotherapy recommended. That therapeutic work began in June 2014 and Dr Jones goes on to say this in relation to A (see C35):

"He immediately reflected and then recalled feeling anxious about his parents and how difficult he found it to trust them. He linked this with how difficult it was to really trust adults again. After this meeting, A was cautious about returning to therapy. These reflections and links had been shared in an unguarded moment. He had felt overwhelmed by recalling the past and strength of his emotions. He had been exhausted by this work in our meeting. It is interesting that such a strong reaction was raised. This was just from reflecting and remembering; no actual contact or conversation with his parents had occurred nor photographs shared."

The implication being there that if an actual contact had taken place, presumably A's reaction would have been even stronger.

22. The recommendation made by Dr Jones (See C36) is as follows:

"I would not be able to recommend contact regimes with A's birth parents. I think it will at best be a destabilising process. In fact I anticipate that contact with his birth parents would cause him to experience significant emotional distress and re-traumatise him. His attachment difficulties stem from his parents' difficulty to help make him feel safe. Contact would not therefore make him feel safe. It would also be confusing for him as he has accepted and visually relaxed since knowing that he is not seeing his birth parents again. I would recommend that the issue around circumcision be left to A when he is able to give informed consent to this procedure. Given that A is still dealing with fundamental difficulties around trust, I anticipate a medical procedure would be potentially confusing and cause additional distress."

23. The evidence of the Key Social Worker (at least in its written form) can be summarised from page C28. She says this:

"A remains a highly sensitive little boy as a result of his significant attachment disorder and consequently he can display considerable emotional and behavioural difficulties. While there is continuing progress in respect of these difficulties, they nevertheless impact on his daily living. Certain situations will lead to regression and renewed insecurity. For example, going back to school following a school holiday, seeing his siblings and having unfamiliar visitors to the house. Disturbed nights/night terrors can still be a feature of regressive behaviour as can an increase in his emotional dysregulation. A has a history of disturbed nights but these have been in reduction over a period of time. Presenting A for medically non-essential surgery would be in detriment to his overall emotional and psychological well-being. From a medical and psychological perspective, there is a presenting consensus that the procedure should not be carried out while he is still a child with significant emotional needs, but that such a procedure should be delayed until a time when he is more able to understand the cultural and religious aspects of the issue and make informed decisions of his own. The Local Authority acknowledge the complexity of the cultural and religious significance of circumcision within the Islamic faith and culture. The Local Authority equally acknowledge the weight of concern, particularly his father has, to maintain what he sees as an essential element of A's heritage. That said, the Local Authority have to balance what is thought to be the need to maintain A's emotional well-being, progress he has made in relation to his psychological insecurities, the lack of medical necessity for the procedure, the invasive nature of the procedure, the risks associated with the procedure, against the parents' cultural desirability for A to be circumcised as a matter of priority."

24. In her oral evidence to me, the Key Social Worker confirmed that the inter-sibling contact between A and his siblings took place on approximately four occasions per year. A still had very complex emotional needs and suffered from developmental delay. The therapy with Dr Jones had started and some progress was being made.
25. With regard to A's religious upbringing, the Local Authority's foster carers are non-Muslim. However, the female foster carer in particular had a Masters Degree in Religious Studies and she was particularly attuned to A's religious and cultural heritage. The placement of course in this particular Local Authority area in rural Wales, bearing in mind the demographic break-down of the population, is unlikely to provide a supply of Islamic foster carers able to deal with children with an Islamic religious and cultural heritage. That is unfortunate, but I have to take the situation as it is – rather than the situation as the father would like it to be.
26. Within the confines of these particular circumstances, the Local Authority have taken steps to reaffirm A's cultural and religious heritage. The foster carers were taking advice from a local Mosque, there was Islamic imagery presented within the foster carer's home, there were teaching materials made available to A with regard to the Qu'ran, and I was shown a selection of the materials by the Key Social Worker. A had the Qu'ran available to him within the foster carers' home, an Islamic grace was said within the home and A's dietary requirements were met fully by the provision of a Halal diet with the foster carers' travelling to Manchester to enable that requirement to be met. Advice was given with regard to prayer rituals by a local Mosque and it was confirmed that A had attended the local Mosque for "family days" on at least four occasions per year.
27. This evidence with regard to the provision of cultural and religious information for A was supplemented by the evidence of the Guardian herself, who told me that A had attended as part of the family community at the local Mosque with the foster carers. The foster carers took advice from a professional at the Mosque with regard to religious and cultural issues. They had begun the process with A of instruction in Arabic/Qu'ranic script, but on the particular occasion that this was attempted, A had become distressed unaccountably and for that reason the foster carers were advised to delay the process until A had become more composed. The Mosque fully understood A's needs for instruction and they were intent on proceeding in accordance with A's pace. So far as the school was concerned, on occasions where there was an act of worship within the school (which was a Christian act of worship), A would be removed from that act of worship and would be provided with a separate one-to-one session congruent with his Islamic background and heritage.
28. The father's case was that the steps taken by the Local Authority had simply been insufficient. His main requirement was that A should be placed with a Muslim family; it was only thus that his religious and cultural heritage could properly be safeguarded. A should attend daily at a Mosque (according to the father), there should be no alcohol within the home and A should be taught the basics of Arabic and Qu'ranic script by an Imam to enable him to say his prayers and participate fully in the religious rituals of the Islamic faith. In particular, there was a need for the circumcision to be undertaken because of the need also to maintain cleanliness and hygiene prior to prayers being said.
29. The Local Authority's case, and indeed the Guardian's case more generally with regard to these applications, was firstly that A's emotional development and difficulties at present precluded a reintroduction of face-to-face contact. The Guardian's position was that a section 34(4) Order should be granted on an open-ended basis and before the parental contact could be introduced, there was a need for the parents to fully understand A's psychological and behavioural difficulties and accept the reasons for his placement, because there was a significant risk that if that understanding was not enhanced, then A's placement within the foster carers' home would be undermined.
30. The contact arrangements would be kept under review by the Local Authority and as a prelude to any reintroduction, the Local Authority should obtain the advice of Dr Jones. The Order in any event was a permissive Order and if A made sufficient progress and/or his parents made sufficient progress, there would be no reason why the Local Authority could decide not to use the permissive power and reintroduce parental contact when they thought appropriate.
31. With regard to A's cultural heritage, the Guardian's view (like that of the Local Authority) was that this was being fully met at present by the insightful foster carers (who I have identified) and the surgical operation of circumcision was not currently in A's best interests bearing in mind his fragile emotional position and the therapeutic work which was presently being undertaken.
32. So far as the father is concerned, when he gave his evidence he did not acknowledge that A had any particular problems whatsoever. With regard to Dr Jones' report and the Local Authority's concerns, the information contained therein was "mostly lies" and the report was "made up". The father's position was that he as a Muslim father had the right to have his child circumcised regardless of that child's wish. He asked for a photograph of A to be provided for himself and for A's mother, and there is no opposition with regard to that by the Local Authority or indeed the Guardian. The father asked for direct contact to be reinstated.
33. When he was asked about A's religious upbringing and the issue of circumcision in the past, he confirmed that he had not attended to this issue with regard to his male children prior to the children being taken into Local Authority care. It was the Local Authority's case that the father plainly had the opportunity to do so in the time between A's birth and the children being accommodated by the Local Authority. The father confirmed that this was the position because he said in terms that he had been in Bangladesh but only for a period of one year following A's birth and that would still have allowed sufficient time for the circumcision to have been undertaken, if the father and the parents more generally, had wished that to occur.
34. He indicated (as I have explained already) the further steps that he would like to see taken with regard to the religious practices followed by A.
35. The father also produced, at a comparatively late stage in the proceedings, a letter which purports to be written on behalf of an Imam from a local Mosque to the father. This was produced on the day of the hearing itself and of course is extremely late disclosure, because I made provision for the production of this document at a far earlier stage in the proceedings, thereby providing an opportunity for the Local Authority and the Guardian properly to respond to it. In any event, the document that was produced is headed 'The Importance of Circumcision in Islam'. It then continues in the following way, under the heading 'Status':

"The rite of circumcision in Islam is not part of the aqeedah (the beliefs that a person must accept in order to be a Muslim). This means that it is possible for a male to be a Muslim without being circumcised. However, it is a rite that translated into English is an act which is 'highly recommended'. This means that it is not compulsory but almost so and considered obligatory unless there is a very good reason for it not to be done. It is practices in all Muslim societies without exception. Not to have a boy circumcised would be seen as a social disgrace and a disregard of the child's rights."

36. The document goes on:

"Boys should be circumcised as early as possible, normally not later than five to seven years of age and certainly before puberty. To leave it later than this causes unnecessary discomfort for the boy and if it is not done at all this would almost certainly cause problems at the time of his marriage, as all males are expected to be circumcised."

37. The document goes on and says the two main reasons for this are:

"Religion: Allah (God) ordered the prophet Abraham to circumcise himself not only as an act of obedience to God but for reasons of cleanliness and health. Abraham in turn ordered for his sons and followers to do the same and to ensure that the rite was carried out in future generations ... Boys also have to wash if they have 'wet dreams' at night. In Islam cleanliness is of paramount importance when you stand for prayer in front of God, and not to be clean is an act of disobedience to God. It is considered to be very difficult indeed to properly clean the penis if the foreskin is still present.

"Health Benefits:

(i) circumcision protects against local infection of the penis, due to the difficulty of ensuring cleanliness around the penis;

(ii) it gradually reduces the risk of infection of the urethra;

(iii) cancer of the penis is almost non-existent amongst circumcised males;

(iv) the incident of sexually transmitted disease amongst circumcised males is much lower than among uncircumcised males;

(v) in married couples where the male is circumcised, there is much less risk of a female contracting cervical cancer."

So far as that heading 'Health Benefits' is concerned, that opinion of the medical therapeutic benefits is by no means put forward by a medical expert. Whilst I am prepared to accept the views expressed with regard to Islamic practice, the views of the Imam with regard to the medical benefits of the procedure are effectively the views of a lay person and not the views of an expert.

38. In essence it was the father's case that it was his right to determine when his son should be circumcised regardless of A's views, and only a Muslim/Islamic foster carer could properly address A's religious and cultural background.

The law applicable in applications of this kind

(i) Section 34(4) of the Children Act 1989

39. Parental contact with a child in care is governed by section 34 of the Children Act 1989 and the regulations thereunder.
40. Under section 34(1) of the Act, subject to the Local Authority's duty to safeguard and promote a child's welfare, the Local Authority "shall allow the child reasonable contact with (a) his parents".
41. The Local Authority and the child can make an application for contact under section 34(2) of the Act.
42. Parents can make an application without leave under section 34(3) of the Act, and the Court can make an Order of its own volition under section 34(5) of the Act.
43. Any such contact can be suspended for up to seven days in a case of emergency, under section 34(6) of the Act.
44. The Court can permit a Local Authority to refuse parental contact under section 34(4).
45. An application under section 34 is a substantive application, where the Court is determining a question with regard to the upbringing of a child, and therefore the paramountcy of the child's welfare applies as does the so-called 'checklist' provisions.
46. Because of the effect of section 3 of the Human Rights Act 1998, the Court must give effect to the primary legislation in a way which is compatible with Convention rights. Thus the key concepts of proportionality and necessity apply. This applies to contact and indeed a 'no contact' provision, as it does to the original application for the Care Order itself. These principles are of course of general application. The observations of Lady Hale in the Supreme Court decision of Re B [2013] 2FLR 1075 at paragraph 194 to 196 make it clear that these concepts of proportionality and necessity apply in contact applications to a child in a care.
47. Termination of direct parental contact by exercise of permissive authority is a drastic step indeed, and it amounts to a significant infringement of family life in the absence of justification which is provided by way of the health or welfare, morals, rights or freedoms of children themselves.
48. Recently the President gave some further guidance in the case of Re A [2015] EWFC 11. The Local Authority must establish the facts asserted, the Local Authority must demonstrate the causal link between any proven harm and the resulting consequences for the child and the Court has to accept diverse standards of parenting and parental contact and that diverse standard has to be permitted because the Court/the State itself cannot indulge in social engineering.
49. Under section 34(7) of the Act, the Court can impose conditions upon any Order made under section 34, which includes section 34(4) permission itself, and therein lies the Court's power to time-limit any permission granted.
50. It is for the Local Authority to establish the basis for withholding reasonable contact; it is not for the parents to prove that their right to contact is justified.
51. I do not disagree with the Guardian with regard to her welfare analysis in this case, but I do disagree with her recommendation with regard to the open-ended nature of the permission which she recommends under section 34(4) of the Act in A's case. She recommended that it should be open-ended without restriction of time during the currency of the Care Order.
52. As I have said, the key concepts of proportionality and necessity have not been weighed in the balance, in my judgment, in the Guardian's oral or written evidence. The Key Social Worker in fact suggested that the Order should continue for at least as long as A's therapeutic work was to be continued, and she mentioned to me a period of approximately nine months. The Guardian for her part was concerned as to whether this time scale would meet A's needs for therapy.
53. My judgment is that the Guardian's open-ended timescale is too broad and disproportionate and does not satisfy the requirement for necessity. However, the Key Social Worker may be too optimistic perhaps with regard to her time estimate and its brevity have regard to the expert evidence in this case. A time limit would certainly compel the Local Authority to justify any future restriction of parental contact and the Local Authority would be obliged to return to Court to ask for that permission to be extended. What Order would then be made would of course depend upon the circumstances at that particular time.

(ii) The issue of religious upbringing/circumcision

54. Under section 33 of the Children Act 1989, the effect of a Care Order is set out.
55. Under section 33(3), a Local Authority designated under a Care Order has parental responsibility for a child which is shared with the child's parents. The Local Authority has the power, subject to the provisions of section 33, to:

"…determine the extent to which a parent may meet his parental responsibility for him."

That is a reference of course to the child in care.

56. Under section 33(4), the Local Authority cannot exercise that power:

"…unless satisfied that it is necessary to do so in order to safeguard or promote the child's welfare."

57. Ordinarily of course a parent exercising his or her parental responsibility would be authorised to provide consent for a child's circumcision on either a health or a religious basis.
58. Under section 33(6)(a), while a Care Order is in force the designated Local Authority shall not (and that is in mandatory terms):

"…cause the child to be brought up in any religious persuasion other than that in which he could have been brought up if the order had not been made."

59. There are further restrictions under section 33(7) with regard to the removal of a child from the United Kingdom for a period extending beyond one month, the use of a new surname for a child in care being forbidden.
60. There are a number of decisions to which my attention has been drawn with regard to this issue of circumcision. The first was the decision in the case of Re S [2005] 1FLR 236, which was a private law application for a Specific Issue Order of a child of mixed heritage. So far as that decision is concerned, it provided for the keeping of options open with regard to a child of mixed Muslim and Hindu heritage until the child could make an informed decision with regard to whether he wished to be circumcised. That is a decision which is not particularly helpful in the circumstances of this case. It arises within the private law sphere, and it arises of course within the context of a mixed heritage. So far as A is concerned there is no dispute as between his parents as to Islamic religion and practices, which both parents would like A to follow.
61. The next decision was Re J [2000] 1FLR 571. That is a decision of the Court of Appeal and the President at that time, Dame Elizabeth Butler-Sloss, indicated at page 577(e):

"The issue of circumcision has not to my knowledge previously been considered by this court, but in my view it comes within that group of decisions which are extremely important. The decision to circumcise a child on a ground other than medical necessity is a very important one. The operation is irreversible and should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child. This requirement for a determination by the court should also apply to a local authority with parental responsibility under a care order."

62. Reference was made in Re J to an earlier decision of Wall J in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2FLR 678, that providing an indicator of the kind of factors which were taken into account by a court when deciding such an extremely important issue. It was emphasised in the case of Haringey London Borough Council v C and E [2007] 1FLR 1035 by Ryder J:

"Religious, racial and cultural factors are integral elements of welfare and may on the facts of a particular case provide both the positive and negative factors and context by and within which decision have to be made. However, whatever an individual belief system may provide for, and despite the respect that will be given to private and family life and the right to freedom of thought, conscience and religion, and the freedom to manifest religion or belief in worship, teaching, practice and observation (by Articles 8 and 9 of the Convention), the law does not give any religious belief or birth right a pre-eminent place in the balance of factors that compromise welfare. Furthermore, the safeguarding of the welfare of vulnerable children and adults ought not to be subordinated by the court to any particular religious belief."

63. This topic has more recently come under consideration by the President himself in the case of Re B and G [2015] EWFC 3, a case which deals primarily with female genital mutilation but makes some observations about male circumcision. At paragraph 64 of his judgment, the President said:

"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 female genital mutilation in any of its forms. ... Certainly current judicial thinking seems to be that there is no equivalence between the two."

64. The President goes on to say at paragraph 68:

"In my judgment, any form of female genital mutilation constitutes "significant harm" within the meaning of sections 31 and 100 of the Children Act 1989. What then of male circumcision?"

65. At paragraph 68, the President, referring to earlier decisions, reaches the conclusion that male circumcision does involve harm or the risk of harm, and says:

"In my judgment, if female genital mutilation Type IV amounts to significant harm, as in my judgment it does, then the same must be so of male circumcision."

66. The President then goes on at paragraph 72 and 73 to say this:

"(72) It is at this point in the analysis, as it seems to me, that the clear distinction between female genital mutilation and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of female genital mutilation 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 female genital mutilation in any of its forms. There are, after all, at least two important distinctions between the two. Female genital mutilation has no basis in any religion; male circumcision is often performed for religious reasons. Female genital mutilation 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.

(73) I conclude therefore that although both involve significant harm, there is a very clear distinction in family law between female genital mutilation and male circumcision. Female genital mutilation in any form will suffice to establish 'threshold' in accordance with section 31 of the Children Act 1989; male circumcision without more will not."

67. That decision, however, does not provide the answer as to whether the Local Authority in the exercise of its primary parental responsibility is entitled to refuse circumcision and whether that is or is not in the interests of A in this particular case.

(iii) The issue of religious upbringing

68. The issue of religious upbringing has been considered recently in the case of Re A and D [2011] 1FLR 615. I quote for these purposes from the headnote itself. That was a case brought within care proceedings, where the parents had originally been Muslim and the mother had reverted to Roman Catholicism and there was a dispute between the parents as to how the Local Authority should deal with the issue of the religious upbringing of the child. Under the third heading of the headnote, the Court found as follows:

"The local authority's duty to protect a child's religious persuasion under section 33(6)(a) of the Children Act 1989 was subject to its overriding duties to safeguard and protect the child's welfare under section 17(1) and section 22(3) of the Children Act 1989. The subtle and careful language of section 33(6)(a) required an equally subtle and careful interpretation. When a young child was made the subject of a care order, the local authority was under a duty to ensure that he was not brought up in any different religious persuasion from that followed by the parents prior to the care order. If the local authority breach that duty, it would be exceeding the limitation imposed on its exercise of parental responsibility by section 33(6)(a) and in appropriate circumstances the parents could apply for judicial review or apply for injunctive relief for breach of statutory duty or under the Human Rights Act 1998. Furthermore, so far as possible, a local authority had to ensure that the child was brought up with a full appreciation and understanding of his religious heritage and background."

Mr Justice Baker dealt specifically with those matters more fully at paragraph 70 to 75 of his judgment, which I have summarised from the third heading of the headnote itself.

My conclusion with regard to these different applications

(a) The issue of section 34(4) of the Children Act 1989 and the application thereunder

69. I agree with the expert evidence in this case and the Guardian's assessment. Unusually, and regrettably in these circumstances, A's emotional/behavioural difficulties and his extreme insecurities and fragility mean that the reintroduction of direct parental contact, at this delicate point in his therapeutic progress, is likely to be harmful and detrimental to him.
70. A's need for reassurance, for stability and for calm, and not to be reminded of past insecurities and unhappiness, is absolutely critical.
71. On this basis, the Local Authority's application for permission is proportionate and necessary and accords with A's best interest and his welfare. I would limit the authorisation of that permission for a two year period to enable that therapeutic work to be undertaken and for sufficient aftermath thereafter. If the Local Authority wish to extend the permission granted, then they must apply to do so in due course. That, in my judgment, balances A's welfare appropriately against the parental right to face-to-face contact and the issue of proportionality and necessity.

(b) The issue of circumcision

72. There are religious and social reasons which do favour the parents' application in this case. A does not have a mixed religious heritage and the mother and the father are of the same mind with regard to this particular issue.
73. So far as the benefits are concerned, firstly A as a child would be fully identified with his Muslim religion and this would be in accordance with the parents' religious persuasion and the religious practices of the parents and the child would therefore be fully recognised. However, balancing that, I bear in mind that A is growing up in an environment with his foster carers where religious circumcision is not part of family life or where his peers have not all been circumcised, so for him not to be would not render him unusual in any sense; indeed, to the contrary. Circumcision within A's household and amongst his peers at school/socially is likely to be the exception rather than the rule and may, to some degree, single him out for attention amongst his contemporaries at school when for instance he changes for sport and physical education within a school environment.
74. Next, I bear in mind that circumcision is of course irreversible. It is a surgical intervention which is likely to be painful with attendant discomfort, particularly as A is a somewhat older child to whom this procedure might be applied. There is a degree of physical and psychological risk and the health benefits which have been identified by the Imam have not been supported by any expert medical evidence favouring this procedure in A's case.
75. The really significant feature of this particular application is A's behavioural and attachment difficulties generally. A needs to establish relationships with his primary carers; relationships of trust. That trust would be eroded if wholly unexpectedly, an invasive and painful medical procedure was undertaken which A might not fully appreciate the need for and which would inflict a degree of pain, trauma and an aftermath of discomfort. The likely reaction to that procedure, in my judgment, is likely to be a harmful one for A and will hinder his developmental progress and behavioural improvement more generally.
76. Finally, I bear in mind of course that this procedure is not an essential prerequisite for Islamic religious observance, certainly not at this particular time so far as A is concerned.

(c) The issue of A's religious upbringing

77. I do not conclude that the Local Authority have breached the provisions of section 33(6)(b) of the Children Act 1989. They have not caused A to be brought up in any other religious persuasion other than that which would have applied to him if the Care Order had not been made. The Local Authority within the confines of a non-Muslim/Islamic placement have carefully made provision for his religious/cultural upbringing and I accept the evidence that these particular foster carers are attuned to this particular aspect of A's welfare. They attend a Mosque with him regularly, they take advice from the Mosque, they provide the materials to which I have referred already and their home environment is one in which in general terms A can be in no doubt with regard to his religious and cultural origin.
78. The Local Authority and the Guardian indicated that A (and the foster carers) participated fully as a family in periodic attendances at the Mosque on a regular basis. A's dietary requirements were met. Attempts have been made to begin instruction in Arabic and Qu'ranic script and that has been disrupted and put on hold simply because of A's initial reaction, which was an unfortunate one. But I do not read that experience as indicating in any way that the Local Authority have decided to put an end to that particular instruction. It will be pursued again, when it is advised that this is appropriate to be pursued and dependent of course upon A's reaction to the teaching and instruction which is to be provided.
79. Advice can be given with regard to ablutions within the home and the presence of alcohol within the foster carer's home, and the foster carers, whilst they are not themselves Muslim are individuals, it seems to me, who would be able to promote this aspect of A's welfare. To compel A to be moved from this current placement to another placement with a family of Muslim origin would not be in accordance with A's best interests, even if such a family were available locally, and I was provided with no information that this was the case. Within the present constraints, these foster carers are dealing insightfully with this particular aspect of A's development, and in the circumstances of this case no declaration or injunction is appropriate.
80. Accordingly, as I announced yesterday by way of summary, I grant the Local Authority's application under section 34(4) of the Children Act 1989 for a period of two years. I make provision for a photograph of A to be provided for his parents annually. I make provision also for indirect contact, no injunction or declaration under the Human Rights Act 1998 will be made with regard to A's circumcision or indeed religious upbringing more generally. I reach the conclusion that the Local Authority has not breached the provisions of section 33(6)(a) of the Children Act 1989, which has not been established by the parents.
81. If the parents wish to make a separate application with regard to their other children, then they must issue that application in the usual way.
82. I make provision (as I said at the outset of this judgment) for a transcript to be provided for the parties generally and the parents, so that the father in particular can understand the basis of my decision announced yesterday.
83. There will be no order for costs, save for the usual public funding assessment for the child in this case.

End of judgment