Top Family Judge Concludes that Some Forms of FGM LESS INVASIVE than Male Circumcision

In the matter of B and G (Children) (No 2)

James Munby Sir James Lawrence Munby

Attached is a judgment just entered 1/14/2015 in London over the case of two Muslim children, one a boy (referred to as “B” below) and one a girl (referred to as “G” below). The question was whether or not the girl had even been subjected to FGM as defined by law. They had trouble even finding a SCAR–clearly whatever operation was performed on her, though illegal, was far less invasive than male circumcision, which is perfectly legal.

Presiding over the case was Sir James Lawrence Munby.  Now Sir James is not any British judge; he is the President of the Family Division of the High Court of England and Wales.  He made some VERY OBSERVANT points.  Although I encourage all to read the entire case, I have copied several of Judge Munby’s very astute points below.

IN THE FAMILY COURT
Sitting at LEEDS

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 14 January 2015

Before :

SIR JAMES MUNBY
PRESIDENT OF THE FAMILY DIVISION

– – – – – – – – – – – – – – – – – – – – –

In the matter of B and G (Children) (No 2)

[58] Without wishing in any way to qualify what I have just said in relation to FGM in general, there is a particular issue in relation to FGM WHO Type IV which cannot be shirked. And that brings me to the topic of male circumcision.

[59] Circumcision of the male (from the Latin circumcidere to cut round) is the removal of some, or all, of the prepuce (foreskin), the retractable fold of skin that surrounds and covers the glans of the penis, so as to expose the glans. Circumcision involves the removal of a significant amount of tissue, creates an obvious alteration to the appearance of the genitals and leaves a more or less prominent scar around the circumference of the penis. Apart from the removal of the foreskin, and sometimes of the frenulum, the ligament that connects the foreskin to the glans, the genitals are left intact.

[60] It can readily be seen that although FGM of WHO Types I, II and III are all very much more invasive than male circumcision, at least some forms of Type IV, for example, pricking, piercing and incising, are on any view much less invasive than male circumcision.

[61] It is also important to recognise that comparatively few male circumcisions are performed for therapeutic reasons. Many are performed for religious reasons (as in Judaism and Islam). However, large numbers of circumcisions are performed for reasons which, as the particular prevalence of the practice in, for example, the English-speaking world and non-Muslim Africa suggests, are as much to do with social, societal, cultural, customary or conventional reasons as with anything else, and this notwithstanding the justifications sometimes put forward, that circumcision of the male is hygienic or has prophylactic benefits, for example, the belief that it reduces the incidence of penile cancer in the male, the incidence of cervical cancer in female partners and the incidence of HIV transmission.

[62] Now there is a very simple but important point to all this. There is nothing in the case-law to suggest that male circumcision is, of itself, such as to justify care proceedings: see Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, on appeal Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, and Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236. On the contrary, judges in the Family Division have on occasions made orders providing for non-therapeutic circumcision: see, for example, Re S (Change of Names: Cultural Factors) [2001] 2 FLR 1005, 1015-1016 (T v S (Wardship) [2011] EWHC 1608 (Fam), [2012] 1 FLR 230, was a case of a medically indicated circumcision). As against that, and as Mr Hayes helpfully points out, there are voices in the Academy who take a different view: see, for example, Christopher Price, Male Circumcision: An ethical and legal affront, Bulletin of Medical Ethics (May) 1997; 128, 13-19, and Brian D Earp, Female genital mutilation (FGM) and male circumcision: Should there be a separate ethical discourse, Practical Ethics (2014).

[63] In the present case the point arises in striking form. The family, as I have said are Muslims. I assume, therefore, that B either has been or will in due course be circumcised. Yet, entirely understandably, and, if I may say so, entirely appropriately, this is not a matter that has been raised before me. There is no suggestion, nor could there be, that B’s circumcision can or should give rise to care proceedings. So, given the nature of the local authority’s case on this point, we are in this curious situation.

G’s FGM Type IV (had it been proved) would have been relied upon by the local authority, prior to its change of stance referred to above, as justifying the adoption of both children, even though on any objective view it might be thought that G would have subjected to a process much less invasive, no more traumatic (if, indeed, as traumatic) and with no greater long-term consequences, whether physical, emotional or psychological, than the process to which B has been or will be subjected.

[64] I appreciate that, in Holmes J’s famous observation (Holmes, The Common Law, 1881, page 1): “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

Yet the curiosity remains. The explanation, it must be, is simply that 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 FGM in any of its forms: cf the analysis in Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, paras 39-41. Certainly current judicial thinking seems to be that there is no equivalence between the two: see K v Secretary of State for the Home Department, Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1 AC 412, paras 31, 93, and SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888, [2014] Imm AR 170, paras 13-15.

[65] These are deep waters which I hesitate to enter. I am concerned with a narrower question, namely how one accommodates the law’s seemingly very different approaches to FGM and male circumcision within the provisions of section 31 of the Children Act 1989.

[66] Mr Hayes helpfully reminded me that the statutory test of ‘threshold’ in section 31 has two components, and this, as it seems to me, provides the key to what might otherwise be thought rather puzzling. Section 31(2) provides as follows:

“A court may only make a care order or supervision order if it is satisfied –
  • (a) that the child concerned is suffering, or is likely to suffer, significant harm; and
  • (b) that the harm, or likelihood of harm, is attributable to –
    • (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
    • (ii) the child’s being beyond parental control.”

I can ignore section 31(2)(b)(ii). So before the State can intervene, the local authority has to prove two things: “significant harm” attributable to parental care which is not what it would be “reasonable to expect” of a parent.

[67] Mr Hayes submits, by reference in particular to what Baroness Hale of Richmond said in Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075, para 185, that any form of FGM, including FGM WHO Type IV, amounts to “significant harm”. To use Lady Hale’s language, no form of FGM can, he says, be characterised as trivial or unimportant, having regard not merely to its purely physical characteristics but also to its associated trauma and potential emotional or psychological consequences. Mr Hayes also makes an exceedingly important practical point. Unless FGM in all its forms is treated as constituting significant harm, local authorities and other agencies, and indeed family courts, may be very significantly hampered in their ability to protect vulnerable children, given that “significant harm” is the jurisdictional hurdle that has to be overcome not merely under section 31(2) but also under section 100(4)(b) of the Children Act 1989.

[68] I agree with Mr Hayes. In my judgment, any form of FGM constitutes “significant harm” within the meaning of sections 31 and 100. What then of male circumcision?

[69] Mr Hayes points to the recognition, both by Wall J, as he then was, and by the Court of Appeal in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, 693, on appeal Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, 573, 576, that male circumcision does involve harm, or the risk of harm.

Given the comparison between what is involved in male circumcision and FGM WHO Type IV, to dispute that the more invasive procedure involves the significant harm involved in the less invasive procedure would seem almost irrational. In my judgment, if FGM Type IV amounts to significant harm, as in my judgment it does, then the same must be so of male circumcision.

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About notyourstocut

Genital Autonomy For All. Her Body, Her Choice. His Body, His Choice.

2 comments

  1. Basic Human Genital Anatomy

    Neurologically, the most specialized pressure-sensitive cells in the human body are Meissner’s corpuscles for localized light touch and fast touch, Merkel’s disc cells for light pressure and tactile form and texture, Ruffini’s corpuscles for slow sustained pressure, deep skin tension, stretch, flutter and slip, and Pacinian corpuscles for deep touch and detection of rapid external vibrations. They are found only in the tongue, lips, palms, fingertips, nipples, and the clitoris and the crests of the ridged band at the tip of the male foreskin. These remarkable cells process tens of thousands of information impulses per second and can sense texture, stretch, and vibration/movement at the micrometre level. These are the cells that allow blind people to “see” Braille with their fingertips. Cut them off and, male or female, it’s like trying to read Braille with your elbow.

    Physiologically, the clitoris is richly endowed with thousands of these specialized pressure-sensitive nerves and the clitoral foreskin is virtually bereft of them. The ridged band at the tip of the the penile foreskin is richly endowed with thousands of these same specialized pressure-sensitive nerves and the glans is virtually bereft of them. Lightening speed feedback by somatosensory transduction from such tactile sensitivity gives humans intense pleasure, environmental awareness, and control. Cut off these super-sensitive cells and with lack of awareness comes lack of control. To say that amputation of the clitoris or amputation of the mobile roller-bearing-like portion of the natural penis, and consequently thousands of these specialized nerve cell interfaces, does not permanently sub-normalize a woman’s or a man’s natural capabilities and partially devitalize their innate capacity for gliding action tactile pleasure is grossly illogical denial of the bio-mechanical and the somatosensory facts of human genital anatomy.

    Mechanically, the natural vaginal and penile lubricants are kept inside the vagina during male/female intercourse by the organic seal effect of the mobile penile foreskin. The mechanoreceptors in the buried legs of the intact clitoris straddle the entroitus of the vagina and are stimulated by the identical mechanoreceptors in the thick bunching accordion folds of the mobile penile foreskin. The clitoris and the penile foreskin are also intensely vascular – thickening when stimulated. Millions of years of trial and error evolutionary forces have synchronously engineered the human sex organs to function synergistically. We can be sure Nature has evolved (if you prefer, God has created) these differences and duplications for a reason. The brilliantly engineered unaltered female body is the perfect match for the equally brilliantly engineered design of the natural penis; they evolved together to compliment each other and they function collaboratively to achieve two common goals – mutual pleasure and insemination.

    A woman can live without the sensitivity of the visible part of her clitoris. A man can live without the mobile and most sensitive part of his penis. But, both men and women are better off with their natural fine-touch parts intact – all of them. And so are their sexual partners.

    Gary Harryman


    Female genital mutilation of any type has been recognized as harmful. FGM of any type is a violation of the human rights of girls and women and must be prohibited. All nations must establish clear policies against genital mutilation (FGM, female and MGM, male genital mutilation) and enforcing existing laws which prohibit it. Probably we should talk about HGM (human genital mutilation, i. e. FGM and MGM).

    FGM Type I is the partial or total removal of the clitoris and/or the prepuce (clitoridectomy). Type Ia is the removal of the clitoral hood or prepuce only; Type Ib, removal of the clitoris with the prepuce. Male genital mutilation (like Islamic khitan (sünnet), Jewish brit milah, US-American AAP-standard, etc.) can’t be compared to Type Ia. Instead MGM is the equivalent to clitoridectomy, that is FGM Type Ib.

    FGM is Islamic. Judge Sir James Munby is wrong, the circumcision of girls is part of several hadith and many fatwa. The Fiqh (Islamic Jurisprudence) of Shafii madhhab and many Ulama of Hanbali madhhab regard FGM as wajib, i. e. as a religious duty. So FGM is part of religion.

    Muhammad said to the muqaṭṭiʿa al-buẓūr (cutter of clitorises) Umm ‘Aṭiyya:

    أشمِّي ولا تنهكي
    ašimmī wa-lā tanhakī
    [Cut] slightly and do not overdo it

    اختفضن ولا تنهكن
    iḫtafiḍna wa-lā tanhikna
    Cut [slightly] without exaggeration

    Who tells Judge Munby: What is the Ruling on Circumcision for Women? Circumcision is obligatory upon men and women according to us (i.e. the Shafi’is). (Majmu’ of Imam An-Nawawi 1:164) The circumcision is wajib upon men and women according to the rājih qawl of Shāfi’ī madhhab. Answered by: Sidi Abdullah Muḥammad al-Marbūqī al-Shāfi’ī. Checked by: Al-Ustāż Fauzi ibn Abd Rahman


    A Cutting Tradition. By SARA CORBETT. The New York Times. Published: January 20, 2008

    http://www.nytimes.com/2008/01/20/magazine/20circumcision-t.html

    Inside a Female-Circumcision Ceremony. Photo: Stephanie Sinclair

    http://www.nytimes.com/slideshow/2008/01/20/magazine/20080120_CIRCUMCISION_SLIDESHOW_index.html?_r=0

    Like

  2. Elżbieta B. Wawrzyńska

    Germany (Ringel / Meyer; Tatjana Hörnle) and Great Britain are paving the way towards the so called “mild Sunnah” type, towards FGM. We should stop this, any form of FGM or MGM should be banned everywhere.

    Judge Sir James Munby can know, that the circumcision of girls is religion, part of several hadith and many fatwa. The Fiqh (Islamic Jurisprudence) of Shafii madhhab and many Ulama of Hanbali madhhab regard FGM as wajib, i. e. as a religious duty. So khitan al-inath (sunat perempuan; FGM) is part of authentic Islam.

    Muhammad said to the muqaṭṭiʿa al-buẓūr (cutter of clitorises) Umm ‘Aṭiyya:

    أشمِّي ولا تنهكي
    ašimmī wa-lā tanhakī
    [Cut] slightly and do not overdo it

    اختفضن ولا تنهكن
    iḫtafiḍna wa-lā tanhikna
    Cut [slightly] without exaggeration

    Today several Muslim clerics promote a “mild sunnah” circumcision, who tells Judge Munby f. e. abot this fatwa. What is the Ruling on Circumcision for Women?

    Circumcision is obligatory upon men and women according to us (i.e. the Shafi’is). (Majmu’ of Imam An-Nawawi 1:164) The circumcision is wajib upon men and women according to the rājih qawl of Shāfi’ī madhhab. Answered by: Sidi Abdullah Muḥammad al-Marbūqī al-Shāfi’ī. Checked by: Al-Ustāż Fauzi ibn Abd Rahman

    And again: any form of FGM or MGM should be banned everywhere.

    s o u r c e s

    A Cutting Tradition. By SARA CORBETT. The New York Times. Published: January 20, 2008

    http://www.nytimes.com/2008/01/20/magazine/20circumcision-t.html

    Inside a Female-Circumcision Ceremony. Photo: Stephanie Sinclair

    http://www.nytimes.com/slideshow/2008/01/20/magazine/20080120_CIRCUMCISION_SLIDESHOW_index.html

    Like

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