Nick Brown

Family law draws a fundamental distinction between the significance of Female Genital Mutilation (“FGM”) and male circumcision.  FGM is a criminal abuse of human rights which can never fall within the scope of reasonable parenting.  Circumcision, by contrast, is in principle reasonable and therefore not a basis upon which the state can seek to intervene in family life and remove children from their parents’ care.  Whilst the literature in the field includes examples of challenges to this different treatment, there is a lack of sustained and detailed consideration of the reasons given for that in the specific context of family law with there being a particular lack of focus on the fundamental nature of family law and what that may tell us about the reasonableness or otherwise of the distinction drawn between the practices.

With a focus on how these practices effect children, I intend to research and argue how it may be right to conclude that there is a fundamental distinction to be drawn between FGM and circumcision but that the reasons given for that distinction in the leading case law authorities may be inadequate and may be reasons that do not get to the heart of why these practices are treated differently.

Specifically, I intend to argue that reasons which focus on past legal precedent, religion and health issues are reasons that can be criticised for focussing on superficial or false distinctions and that the true reasons for the different treatment are concerned with the fundamental nature of law in contemporary democratic society.
In particular, the reasons for the different treatment are perhaps likely to be concerned with five key points.  First, what is reasonable - for the purposes of family law - is intimately connected to (albeit not coterminous with) what has been common or conventional practice previously and circumcision, unlike FGM, has been a practice widely familiar to this jurisdiction for centuries.  Secondly, the law has limits and it would perhaps be impossible for the democratic state, absent massive societal change, to deem circumcision unreasonable. Thirdly, for the purposes of family law and state intervention in family life the bar for reasonable parental conduct is fairly low - which is to say that the law accepts and tolerates a diverse range of parental choices and actions including ones which are arguably or even demonstrably harmful.   Fourthly, the legitimate “felt necessities” of contemporary democratic society rightly include (a) the protection of women and girls from all forms of violence and (b) the protection of the rights of religious minorities, notably those of the Jewish and Muslim communities.  Fifthly, despite the unqualified terms of Article 14 of the European Convention on Human Rights, the principle of equal treatment and non-discrimination is not, in fact, absolute.  It may be subject to exceptions as demanded by society or putting it another way, it can be departed from where “some good reason can be shown”.