Ethics

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Disputes in relation to non-therapeutic male circumcision

 

When do disputes occur?

Ideally, decisions about what is in a child’s best interests are made in partnership between the family and the health team, with the parental role gradually fading as the child develops in maturity.

Disputes arise, however, where there is a difference of opinion as to whether circumcision is in a child’s or young person’s best interests. In relation to non-therapeutic male circumcision (NTMC), disputes have primarily arisen between parents, but there has also been a case of parents in dispute with the local authority whose care their child was under.

Are there examples of disputes that have gone to court?

Additional cases are highlighted elsewhere in the toolkit.

  • Re L And B (Children) (Specific Issues: Temporary Leave To Remove From The Jurisdiction; Circumcision) [2016] EWHC 849 (Fam): an estranged Muslim father sought NTMC of his young sons, in the absence of the mother’s consent. The mother wished the children to decide for themselves whether to undergo circumcision once they were competent to do so. Based on the individual facts of the case, the judge agreed that the decision should be deferred until the boys could decide for themselves (see quote).  

  • A (A Child), Re [2015] EWFC B131: an unsuccessful application was made by Muslim parents of a child who was under local authority (LA) care, for the court to make a declaration/injunction, under section 7(1)(b) of the Human Rights Act 1998, for the LA to arrange for the NTMC of the child. The LA was opposed to the child’s undergoing NTMC. The judge noted that there were religious and social reasons in favour of the parents’ applications, whilst later stating that NTMC was not an essential prerequisite for Islamic religious observance. The judge noted, however, that the child would be growing up with foster carers and his foster family and peers would not all be circumcised.

There may also be a difference in opinion between doctors and the family. Doctors may not wish to accede to a parental request for NTMC as they do not believe it is in a boy’s best interests. Doctors are under no obligation to provide NTMC. If a doctor does not support NTMC they should declare this.

 

How should a dispute be approached?

Many disputes arise because of poor communication and all efforts should be made to avoid this. An independent second opinion may be helpful in resolving some disagreements, but ultimately, some may have to be resolved by the courts. Health professionals must always focus on the overall best interests of the child or young person.

 

When should legal advice be sought?

Legal advice should be sought if those with parental responsibility disagree over whether circumcision should take place.

If agreement cannot be reached, lawyers may advise that it is necessary to seek a court order. Families should be informed and told how to seek legal representation.

 

How can involving the courts help?

Going to court can be distressing for those concerned and it is essential that ongoing support is provided for the child, the parents, and the health care team. There are great benefits, however, in a legal system that can give rulings very quickly when necessary. The law can provide a protective role for both patients and the health care team where there is disagreement that cannot be resolved.

 

Can the courts approve NTMC?

In England, Wales, and Northern Ireland the courts have the power to give consent on behalf of competent and incompetent patients aged under 18. In other circumstances there have been cases where a court has overridden a parental refusal or a child’s refusal, if there was evidence that something would be in the child or young person’s best interests (although it is highly unlikely that a competent child’s refusal of NTMC would be overridden).

In Scotland, the courts have the same powers to give consent to treatment on behalf of people aged under 16, when the child is not competent to give valid consent for himself or herself. Again, although untested, it is highly unlikely that a competent child’s refusal of NTMC would be overridden.

The courts cannot, however, require doctors to perform NTMC contrary to their professional judgement.

In the recent cases that have come to court, as a result of a dispute over whether NTMC was in the best interests of a child lacking competence, the courts have ruled that NTMC was not in the child’s best interests at that time, and where relevant, have suggested deferment to when the boy could make his own decision about whether to be circumcised.

Next page - Declining requests

 

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