HUMAN RIGHTS ACT 1998

How have English Courts been influenced by the Human Rights Act 1998 in dealing with cases regarding disputes over children?

How have English Courts been influenced by the Human Rights Act 1998 in dealing with cases regarding disputes over children?

Introduction

The circumcision of male children? once regarded as relatively uncontroversial? has become a focus for medical and legal debate involving both significant support and pressure groups? and a rapidly growing body of medical and legal literature(Harris? 1993? 455). This paper considers the legality of child circumcision in English law? both in the context of established doctrines of family and criminal law? and under the Human Rights Act. A number of assumptions underpin this paper? which need to be outlined before moving on to discussion of the substantive English law (Harris? 1993? 455).

Firstly? that specificity? including specificity in nomenclature? assists analysis. Nomenclature remains contentious in this area? in part due to petition principii? and in part due to a desire to use a general term encompassing procedures carried out upon the genitals of both males and females. Even if an anatomical equivalence could be identified? the gendered context of the different procedures carried out on males? subincision and superincision are uncommon in the English jurisdiction and "removal of the foreskin or prepuce” (En Law? 1995) is generally equated with circumcision. That procedure? and that procedure only? is the subject matter of this paper.

Secondly? that any religious motivation behind the procedure needs to be engaged with (Act 1985? 1998? 508). A common theme in the broader literature is to refer to genital procedures upon female children as "customary” or traditional? with "no basis whatsoever in any religion". It is more honest and respectful of religious difference? albeit uncomfortable for a liberal analyst? to conclude that a particular religious practice should be suppressed(En Law? 1995). The discussion that follows proceeds on the basis that circumcision is capable of raising religious interests.

Thirdly? those children are in a different position from adults where circumcision is concerned. The English legal order distinguishes between the rights of adults and the rights of children over their own bodies? for instance in relation to tattooing. Additionally? this paper restricts discussion to children? rather than emcompass older children? whose increasing autonomy may involve their exercise of contemporaneous religious and other rights (Act 1985? 1998? 508). Bearing these three principles in mind? the next section discusses the English law relating to the removal of the foreskin in children (Boyle? 1997? 355).

The English Law

General criminal offences of main? wounding and grievous bodily harm clearly prohibit such serious surgery taking place without the consent of the individual? or their parents. In some circumstances? however? even an operating consent will not suffice to exclude the operation of the criminal law (Boyle? 1997? 355). Lord Templeman assumed in Brown that circumcision was not prohibited in the criminal law? but this was uncritical obiter dicta. Later the Law Commission indicated that "male circumcision is lawful under English common law"? but recommended that the lawfulness of ...