The End of Times

There was once a great and glorious Guild.  Its origins were so ancient that they were lost in the mists of antiquity and its branches had spread into every country of the world.  It was highly venerated and its very existence was deemed essential for the survival of society itself: almost everyone wanted to join and, provided they abided by its rules and traditions, they could.  In return, the Guild offered them protection and security.

Of course, there were always some who chose not to join, but they were few and had limited ability to influence the status quo.

There were also some who chose to leave the Guild, but again, their numbers were small and their leaving had minimal impact.

Then, one year, a great Calamity befell; it continued for six years and many died.  Thereafter, ten times as many chose to leave the Guild as had before the Calamity; more people decided not to join at all, they believed that if they followed rules similar to the Guild’s, they would still be entitled to its protection and security.  They were wrong, however, and when they discovered this, they could not accept that the fault was theirs, so they would target their disappointment and resentment at the Guild.

Others began to teach that the Guild was corrupt and abusive: that it bullied and exploited its members; they campaigned for the Guild to be shut down, and they managed to persuade the Regime, which was young and inexperienced by comparison with the Guild, to pay the costs of their campaign.

Some, who rejected the Guild’s rules and traditions, nevertheless wished to join; again, they demanded the protection and security without having to abide by the rules and traditions which underpinned it.  The Guild refused, so they went to the House of Decrees, which agreed that it was unfair to exclude them.  The Regime sought to compromise and set up a rival guild.  They also began to dismantle some of the Guild’s rules.

But it wasn’t sufficient, limited numbers signed up for the rival guild: they only wanted to be members of the original so, eventually, the Regime capitulated to the House of Decrees, marketing their defeat as a great modernisation.  Many members of the Guild believed that the Regime had no authority to do this: the Guild belonged to the people, not to the Regime.

By now, few of the Guild’s rules and traditions, which had once been so important to people, survived.  What remained seemed anachronistic and irrelevant; it was presented as the preserve of the wealthy and the upper classes, ordinary people left or stayed away.

Some now demanded to join the rival guild, even though they didn’t qualify.  They said the Guild no longer catered for their beliefs.  People began to demand that the Regime should set up extra guilds just for them.  Rather than comply with the rules of the existing guilds, they wanted the rules to be tailored to their individual requirements.  It became a free-for-all, with the original purpose of the Guild long forgotten, and its protections diminished or lost.

Eventually, the Guild closed down; its existing members clung together for a while before dispersing, but no new members could join.  The other guilds, lacking a model, fizzled out.  The protections and security, once so highly valued, were gone, people were forced to survive hand-to-mouth, competing with those who had once been their neighbours.  The structures which had once defined their society were gone.  An era of darkness descended upon them.

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UN suppresses dissent against male genital mutilation

In 2006, the United Nations General Assembly published a report by Paulo Sérgio Pineiro into Violence against Children.[1]  Pineiro’s report conformed to UN policy and emphasised violence against women and girls and specifically female genital mutilation.  The report was one of two which followed a conference held in Geneva on Protecting Children from Harmful Practices.  The following year the UN established the International NGO Council on Violence Against Children to ensure that member states participated in UN policy.

In 2012, the Council published a hard-hitting report on violence against children based on tradition, culture, religion and superstition, Violating Children’s Rights.[2]  Under the heading of Male Circumcision, the report observed,

Male circumcision has been largely neglected in mainstream debates on harmful practices because of its strong religious connections, particularly with Judaism and Islam, and its general acceptance in many societies.  In some areas, it is also a cultural practice, for example in parts of South Africa and in Zambia among some ethnic groups, where it is associated with rituals initiating boys to adulthood.

The report observed that,

Male circumcision can result in numerous physical, psychological, and sexual health problems during the surgery, afterwards, and throughout adulthood, including haemorrhage, panic attacks, erectile dysfunction, infection (in severe forms leading to partial or complete loss of the penis), urinary infections, necrosis, permanent injury or loss of the glans, excessive penile skin loss, external deformity, and in some cases even death.

After a brief consideration of prevalence, the report unusually, perhaps even uniquely, identified that the circumcision of boys constitutes―

a gross violation of their rights, including the right to physical integrity, to freedom of thought and religion and to protection from physical and mental violence.  When extreme complications arise, it may violate the right to life.

The report commented on some of the campaign efforts against MGM before concluding that any potential health benefit “does not over-ride a child’s right to give informed consent to the practice”.

Readers will be aware that the strength of the language with which this condemnation of male genital mutilation is expressed is unparalleled in official publications from the UN or any other source.

 

Recently, the US-based anti-MGM campaigner Tim Hammond identified that the link to the report had been removed from the UN’s violence against children website.  A search for the report turns up a page which references the two reports which followed the Geneva conference; the other report is linked to, the Violating Children’s Rights report is not.  The report does remain on the Child Rights International Network website (crin.org) and on Hammond’s own Circumcision Harm site (circumcisionharm.org).

 

In 2016, the NGO Council had been disbanded and its work was taken over by the Global Partnership to End Violence Against Children.  Publications from this new group reveal a commitment only to ending the genital mutilation of girls and to the VAWG agenda generally.  The UN is firmly wedded to the idea of FGM as a gender crime against the autonomy of women and girls and driven by male violence and patriarchal oppression.  The existence of MGM is an awkward embarrassment which needs to be suppressed.  In 2005, the UN stated,[3]

In the case of girls and women, the phenomenon is a manifestation of deep-rooted gender inequality that assigns them an inferior position in society and has profound physical and social consequences.  This is not the case for male circumcision, which may help to prevent the transmission of HIV/AIDS.

In both the UK and the US, it has been claimed by campaigners that MGM is already prohibited by existing legislation.  In the UK this is the Offences Against the Person Act 1861 and the Children and Young Persons Act 1933.  Case law, however, routinely supposes MGM to be lawful and not to fall within the ambit of this legislation.  In Re B and G (Children) (No2) [2015] EWFC 3, for example, in which judgment was given by the recently-retired President of the Family Division, Lord Justice Munby, the court concluded that, unlike FGM, MGM did not cross the threshold of “significant harm” because of the health benefits that are claimed for it.  As I have argued in an earlier blog post, these claims are spurious (the circumcised men in the single supportive study were given condoms; the uncircumcised men were not).

This judicial acceptance creates the very dangerous situation that to outlaw MGM would require specific legislation, analogous to the Prohibition of Female Circumcision Act 1985 and Female Genital Mutilation Act 2003.  In the current climate, no government would have the stomach for such legislation for fear of offending Jewish and Islamic sensibilities.  An attempt to outlaw MGM in Sweden was condemned by the World Jewish Congress as, “the first legal restriction on Jewish religious practice in Europe since the Nazi era”.[4]  A bill to ban male circumcision in Iceland provoked predictable claims of an assault on religious rights and allegations of anti-Semitism and Islamophobia.[5]

The NGO Council’s conclusion remains ever-more relevant: an adult’s right to practise his or her religion does not give that adult the right to impose those beliefs on his or her child through irreversible bodily mutilation.  Hiding barbaric practices based on tradition and superstition behind false claims of health benefits is contemptible and does not over-rule a child’s right to respect for his bodily integrity.  The UN’s approach to ending violence against children should be based on objectivity, and not be driven by the feminist agenda.

[1] Pinheiro, P. S. (2006). Report of the independent expert for the United Nations study on violence against children. United Nations General Assembly.

[2] The International NGO Council on Violence against Children. (2012). Violating Children’s Rights: Harmful practices based on tradition, culture, religion or superstition. New York: Automation Graphics.

[3] Lewnes, A. (2005). Changing a Harmful Social Convention: Female Genital Mutilation/Cutting. Florence: UNICEF Innocenti Research Centre.

[4] Reuters. (2001, June 07). Jews Protest Swedish Circumcision Decision. Reuters.

[5] Sherwood, H. (2018, February 18). Iceland law to outlaw male circumcision sparks row over religious freedom. The Guardian.

Outragous £220K pay of feminist domestic violence charity CEO Sandra Horley would fund leading men’s charity for FIVE YEARS

A superb and shocking post from the wonderful HEqual. Sandra Horley’s pay is proportionate to the scale of the lie she has to sustain. Never forget that it was Horley who admitted in 1992,
“If we put across this idea that the abuse of men is as great as the abuse of women, then it could seriously affect our funding.”

hequal

Last week saw the news from London that there isn’t a single domestic violence shelter place for male victims in the entire city. That’s a city of over eight million people, with vast wealth and huge tax revenues and massive government spending, completely unwilling to house a single one of its tens of thousands of male victims of domestic violence (nor their children). Meanwhile, that very same city hosts the headquarters of feminist domestic violence charity “Refuge”, situated in opulent headquarters right in the centre of London, in St Katharine Docks. Their offices have views of Tower Bridge where rents start at £340K per annum.

Sitting in those plush offices one will find Refuge’s CEO, Sandra Horley. Like any good gender feminist, Horley has a history of using false, massively outdated or cherry-picked statistics about domestic violence to give a misleading picture of the proportion of male and female…

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New Edition: The Family Law A to Z

Dear Friends,

Finally, after a tremendous amount of reading, research, discussion and writing, Ruth and I have completed revision of our Family Law A to Z.

The_Family_Law_A_to__Cover_for_Kindle

Every entry has been revised and, where necessary, updated; new changes to legislation, practice and guidance have been incorporated and new cases have been referenced.  We have also added a few entirely new entries.

We warmly recommend the book to all litigants, whether represented or not, but especially to those who are forced to represent themselves.

We recommend it to lay advisors and McKenzie Friends and to anyone who is in any regard supporting a friend or relation who is pursuing a case in the Family Courts.

It will also represent an invaluable reference work for support organisations of all kinds and to anyone who runs a support forum or Facebook page.

We even recommend the work to lawyers who may sometimes need to remind themselves what Imerman Documents are or what a Grepe v Loam Order does.

Finally, we wholeheartedly recommend it to students of the law beginning their university courses this autumn.  It will be a worthy addition to your bookcases.

The book should be available next week from Amazon.

Interior

Unresolved: What Does Resolution Really Want?

The Legislation

In English and Welsh law, established in the Divorce Reform Act 1969 and repeated in the Matrimonial Proceedings Act 1973, there is only one ground for divorce:

The sole ground upon which a petition for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably.

This means that a petitioner for divorce must satisfy the court both that the marriage has broken down and that it is irretrievable.

The petitioner must prove this using one of five “facts”.

Three of these are fault-based, that is, the petitioner must establish that the breakdown of the marriage was due to fault on the part of the respondent.  These are: desertion, adultery and what has come to be called “unreasonable behaviour”.  This shorthand has led to considerable confusion; the legislation contains neither word, what it actually says is that to prove irretrievable breakdown the petitioner must satisfy the court―

That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

Thus, it is not the respondent’s behaviour that must be shown to be unreasonable, but the expectation that the petitioner should continue to live with them.  The law does not even require the petitioner to show that it was the respondent’s behaviour which led to the marriage breakdown.  In Bannister v Bannister (1980) 10 Fam Law 240, Ormrod LJ observed,

The learned judge, I am afraid, fell into the linguistic trap which is waiting for all of us when we speak of ‘unreasonable behaviour’ in relation to section 1(2)(b) cases.  The basis of this subsection is not ‘unreasonable behaviour’ but behaving in such a way that the petitioner ‘cannot reasonably be expected to live with the respondent’, a significantly different concept.  It is difficult to find an alternative shorthand expression for this subsection, so we all talk, inaccurately, of ‘unreasonable behaviour’.

There are, however, contradictions in this formulation: a court will not grant a divorce where a marriage has clearly broken down irretrievably if the petitioner is unable to establish sufficient fault, and where the petitioner can establish fault, the court will grant a divorce even if the marriage can be salvaged.

The remaining two facts are not fault based: separation for two years if the parties consent and separation for five years if they do not.  Thus, there is already provision in the law for “no-fault divorce”.

Attempts at Reform

Prior to 1969, the grounds for divorce had been adultery, cruelty, desertion and incurable insanity.  Divorce was relatively uncommon, though increasing, with the result that numerous couples were living in adulterous relationships and raising illegitimate children.

Calls for reform of divorce law had escalated since the failure of the Matrimonial Causes Act 1937 to enable separated couples to divorce.  As the Denning Report noted in 1947, there was no provision in law for the divorce of consenting parties.  Denning observed,

Marriage is not a contract which the parties can mutually agree to rescind.  It confers a status in which others beside the parties are interested… Society itself, for the sake of the children, cannot allow the unity of family life to be broken by the consent of the parties.  Hence in this country the fundamental rule that divorce by mutual consent is not allowed.

In a Private Member’s Bill in 1951, Eirene White MP proposed “a new principle, in that it looks to the breakdown of the marriage as the ground for divorce”, rather than fault committed by the other party.  Divorce, based upon this principle of “irretrievable breakdown” would be granted if the parties had been separated for seven years.

The Bill went no further, but between 1951 and 1956 a Royal Commission considered marriage and divorce; there had been only two previous Royal Commissions on marriage, in 1909 and 1350.  Nine of the Commission’s eighteen members recommended divorce based on irretrievable breakdown; opposition was based on the objection that this would constitute divorce by consent, an intolerable concept.

In 1962, the Labour MP for Pontypool, Leo Abse, launched a Private Member’s Bill based on the principle that there was no point in recrimination in a marriage which had irretrievably broken down.

Abse, a flamboyant Welsh lawyer who introduced more private member’s bills than any other MP in the 20th century, was best known for pushing through the legislation to decriminalise male homosexual acts.  He sought to minimise hostility by making divorce easier, and by removing the necessity for both parties to agree, which obliged many to live in illegitimate unions.  He believed this would reduce illegitimacy and strengthen marriage and the family,

I am now pleading for those who find themselves joined in a dead marriage contracted years ago, who are unable to regularise their relationship or legitimise their children.  When they are told that the existing law is in existence because of the need to maintain it out of respect for the marriage contract, it is inevitable that they regard such a comment as cruel sententiousness.

Nevertheless, what he proposed would mean a spouse could be divorced without his having committed any matrimonial offence and against his will, a move which represented a revolutionary change in divorce law and would have consequences Abse never envisioned.  It also removed from the process any sense that divorce was socially irresponsible.

Two reports commissioned in 1966 reflected the continuing dispute between social accountability and individual emancipation, reaching contrary conclusions: the Archbishop of Canterbury’s Group recommended an inquest into each divorce, examining why the marriage had broken down; the newly formed Law Commission, a left-wing quango set up by Harold Wilson the year before, with strong links to the legal and social-work professions, wished to remove the notion of “fault”‘ entirely, on the ground that it increased “bitterness, distress and humiliation”.

The Divorce Reform Act 1969 which followed was a compromise between these two positions.  It did nothing to ‘buttress’ marriage, as intended by Parliament, but neither did it fully realise Abse’s ideal of removing hostility and rancour.  Petitions more than doubled: from 51,000 divorces in 1969 to 119,000 in 1972, affecting 131,000 children.

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Owens v Owens: the First Hearing

In May 2015, Tini Owens sought a divorce from her husband, Hugh, to whom she had been married for 38 years.  Their two children had long since left home and she had had an affair a couple of years before.  Tini and Hugh were living separately, but had not been separated for the two years requisite for a consent-based divorce.

A petitioner cannot use her own adultery as the basis of a divorce, so Tini’s only option was to use “unreasonable behaviour”.

The usual advice is to cite five or six things which have made a spouse impossible to live with.  These are summed up in a few short paragraphs in the petition, including the first and most recent events, the most serious, and all dates, if they are known.  Tini provided five examples.

Hugh returned his acknowledgement of service, expressing an intention to defend the divorce.  This is unusual: in 2016 only 2.28% of respondents expressed an intention to defend and only 0.67% filed an Answer as the first stage.  Only 17 cases reached court.

Tini was allowed to amend her petition, elaborating upon her description of Hugh’s mood swings and unpleasant disparagement into 27 separate allegations.

In court, Tini’s counsel, Philip Marshall QC, explained,

I can say straight away I do not propose, unless your Honour wishes me to do so, to go through each and every one of the 27 allegations.

The judge, Robin Tolson QC, replied,

I was going to ask if there is any measure of agreement as to the approach we should adopt to that? … I am asking about the forensic approach to 27 separate allegations, some older than others.

And Philip Marshall responded,

I simply propose to focus upon one or two of them, or three or four of them.  My client in her statement has confirmed the veracity of her petition and I will ask her to confirm that, and that will stand as her case to the extent it is supplemented in her witness statement which your Honour will, of course, have in due course.

Marshall focused on four of the allegations, all involving incidents which took place in public spaces or in front of others.  It was still a slow process, obliging Tolson to say,

Well, gentlemen, shall we get on, we have an awful lot of allegations to cover at some point in the next hour and a quarter.

In his judgment, Tolson recorded,

The agreed approach at the trial was not to investigate each and every allegation, but through examination and cross-examination of the history of the marriage and selected allegations to give the overall flavour or complexion of the case and of how personal perspective might have altered reality in terms of the pleaded matters.

The court of Appeal considered this “an unexceptional approach”.

The four incidents do not amount to much; they are unremarkable for a 38-year-old marriage which has lost its sparkle, though they need to be seen in context and as they might be perceived by Tini Owens, described by the Court as a particularly sensitive woman.  Mr Owens had said,

I think she had an ulterior motive for collecting all these, what, to my mind was a collection of molehills which she felt suited her purpose to build up into mountains because she had aspirations outside of our marriage.

Tolson accepted that the marriage had broken down, finding that the wife “cannot go on living with the husband” and continuing “he claims to believe that she can, indeed that she will, but in this in my judgment he is deluding himself”.  But Mrs Owens had not proved that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him.

Tolson directed himself,

In the present context, the law permits me to grant a decree of divorce only if I can find on a balance of probabilities that “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.  Only then could I hold the marriage to have broken down irretrievably (if it has).  In determining the question whether this Respondent has behaved in such a way I apply an objective test – what would the hypothetical reasonable observer make of the allegations – but with subjective elements. I have to take into account the individual circumstances of the spouses and the marriage: “would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him taking into account the whole of the circumstances and the characters and personalities of the parties?”

He continued,

In reality, I find that the allegations of alleged unreasonable behaviour in this petition – all of them – are at best flimsy.  I would not have found unreasonable behaviour on the wife’s pleaded case.  As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent.  They are all at most minor altercations of a kind to be expected in a marriage.  Some are not even that.

He concluded,

I have not found this a difficult case to determine.  I find no behaviour such that the wife cannot reasonably be expected to live with the husband.  The fact that she does not live with the husband has other causes.  The petition will be dismissed.

Merely because she was unhappy in the marriage was not a justification for the court to grant her a divorce.

Divorce was introduced as a means by which a wronged party could seek legal remedy, usually for adultery.  Thus, the law requires that one party must find fault in the other: that they have defaulted in some way.  There is no provision for ending a marriage like that of the Owenses, where the parties are equally to blame.

The Appeal to the Court of Appeal

Mrs Owens now had a choice: she could have submitted a new petition; for example, in Stevens v Stevens [1979] 1 WLR 885, a wife’s petition was dismissed.  The marriage had broken down, but due to her own behaviour and she had not established a case against her husband.  She presented a second petition, based on behaviour that had occurred since the first hearing, and the divorce was granted.

Instead, Mrs Owens appealed the judgment to the Court of Appeal where it was heard by Lord Justice Munby, the President, and Lady Justice Hallett.

The basis of her appeal was that Tolson’s process had been flawed: he had not made core findings of fact, failed to assess properly her subjective characteristics, failed to assess the cumulative effect of her husband’s behaviour and failed to apply the law correctly to the facts.

She also argued that her Article 8 (respect for family life) and Article 12 (right to marry) Convention rights were being contravened.

The Court of Appeal considered precedents to determine the correct approach the lower court should have taken, none was recent.  Munby quoted Cairns LJ who had said in O’Neill v O’Neill [1975] 1 WLR 1118, 1121,

The right test is, in my opinion, accurately stated in Rayden on Divorce, 12th ed (1974), Vol.1, p 216:

The words ‘reasonably be expected’ prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the Court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable.

Munby continued to quote from Rayden,

In all these cases the totality of the evidence of the matrimonial history must be considered, and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of after a consideration of any excuse or explanation which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called upon to endure it.

Munby cited, inter alia, Cumming-Bruce LJ who said in Balraj v Balraj (1980) 11 Fam Law 110,

…the court has to decide the single question whether the husband (for example) has so behaved that it is unreasonable to expect the wife to live with him.  In order to decide that, it is necessary to make findings of fact of what the husband actually did and then findings of fact upon the impact of his conduct on that particular lady.  As has been said again and again between a particular husband and a particular lady whose conduct and suffering are under scrutiny, there is of course a subjective element in the totality of the facts that are relevant to the solution but, when that subjective element has been evaluated, at the end of the day the question falls to be determined on an objective test.

Munby found that this was the law Tolson should have followed and that he had indeed followed it.  Matters had to be viewed from the perspective of 2017; the objective test had to be applied by reference to the standards of “the man or woman on the Boris bus with their Oyster Card in 2017” and not of “the man on the horse-drawn omnibus in Victorian times” or of “the man or woman on the Routemaster clutching their paper bus ticket” in 1969.

Munby found that Tolson had made core findings of fact, had assessed properly Mrs Owen’s subjective characteristics, had assessed the cumulative effect of her husband’s behaviour and had applied the law correctly to the facts.

Tolson had not been wrong to have examined only four of the 27 allegations made: the court was required to have regard to the overriding objective which requires the court to

  1. deal with every case expeditiously and fairly;
  2. deal with a case in ways which are proportionate to the nature, importance and complexity of the issues;
  3. save unnecessary expense; and
  4. allot to each case an appropriate share of the Court’s resources, while taking account of the need to allot resources to other cases.

Munby concluded that the Court of Appeal had no grounds to interfere with Judge Tolson’s decision and the human rights arguments were dismissed.  Although the Convention provides a right to marry, there is no corresponding right to divorce.

The Appeal to the Supreme Court

Again, Mrs Owens could have submitted a new petition, but instead she appealed further to the Supreme Court.  Like Munby, Lord Wilson was unable to find a precedent more recent than Balraj in 1988.

Resolution, the solicitors’ association, intervened in the case.  It contended that through the “unreasonable behaviour” subsection, the state “actively precipitates dispute”.  Resolution argued that the lower courts had been misinterpreting the subsection and that the focus should be on the petitioner’s reaction to the respondent’s behaviour and not on the behaviour itself.  The Supreme Court rejected this interpretation, “With respect to Resolution, its suggested interpretation of the subsection is incorrect”: “it is… impossible to avoid focus on the respondent’s behaviour, albeit assessed in the light of its effect on the petitioner”.

Mrs Owens had sought, unsuccessfully, to use this interpretation in the Court of Appeal, but wisely decided not to use it in the Supreme Court.

The Court admitted, “There is no denying that the appeal of Mrs Owens generates uneasy feelings”, but concluded,

The appeal of Mrs Owens must be dismissed.  She must remain married to Mr Owens for the time being.  Were she to continue to live apart from Mr Owens until 2020, he would surely have no defence to a petition then brought under section 1(2)(e) of the 1973 Act on the basis that they had lived apart for a continuous period of five years.

Lady Hale expressed the view that the correct disposal would have been to have allowed the appeal and to have sent the case back for a rehearing, but that would have been unacceptable both to the parties and to counsel, and it is unlikely it would have been heard before February 2020 when a simpler hearing can be conducted on the basis of five years’ separation.

The Media Response

The media response to the case was extraordinary and reflected the confusion generated by the “unreasonable behaviour” shorthand.

In the Guardian, for example, Suzanne Moore, who admits, contrary to all the evidence, to have no time for marriage which she thinks is “essentially about property and patriarchy” – tried to make out that Tini Owens was a “captive”, the vulnerable victim of an oppressive and paternalistic husband.  In reality, of course, an equally weak petition presented by a husband would have been just as likely to have failed.  She resurrected the tired old feminist myth that the “rule of thumb” derives from a husband’s right to beat his wife with a stick no thicker than his thumb, and claimed that the 1996 Family Law Act, which would have introduced a form of no-fault divorce, was shelved because the Blair Government was “terrified of the fundamentalists in Middle England and that great arbiter of morality, the Daily Mail”.  In reality, it became encumbered by amendments to make divorce dependent on financial and child resolution, as in Scotland, so that a “simple and elegant legislative scheme became exceedingly complex”.

The Campaign for “No-Fault”

In his Court of Appeal judgment, Munby had gone on to describe the long history of campaigning for the introduction of “no-fault divorce”.  This commenced with a former President, Sir Gorell Barnes, fulminating in 1906 (Dodd v Dodd [1906] P 189, 207),

That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted.  The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects.

Munby observed that the law as it stands does already provide for divorce by consent,

The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act [two years separation with consent] but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b) [unreasonable behaviour].  It is ironic that collusion, which until the doctrine was abolished by section 9 of the 1969 Act was a bar to a decree, is now the foundation of countless petitions and decrees.

The reality is that if a couple wants a divorce they will find a way; a Royal Commission into marriage was established in 1909 and the King’s Proctor complained that 75% of divorces were by consent, using what was then referred to as “misconduct”.

This is a particularly dishonest situation, indeed, Munby observed in his judgment,

The simple fact, to speak plainly, is that in this respect the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty.

“Unreasonable behaviour” provides a normally simple and straightforward route to divorce, provided the parties collude and agree that one will make allegations designed to satisfy the law and not to reflect the truth.  This is the most popular way of obtaining a divorce, representing 45% of petitions in 2016.

The case of the campaigners for reform is that this no longer is acceptable and generates hostility.

In Scotland, in 2006, a solution was adopted by reducing the two-year wait to one and the five-year wait where there is no consent to two years.  The result is that 68% of petitions in 2015/16 relied on two-years’ separation without consent and 26% used one-year’s separation with consent.  This isn’t because Scots are inherently less argumentative than the English and Welsh, it’s just the easiest way to get a divorce.

Professor Liz Trinder, an enthusiastic advocate for reform, conducted research into fault-based divorce.  She rejected the status quo as unsustainable and a stricter enforcement of the law as unachievable.  She rejected the Scottish solution, too, as incompatible with the English/Welsh culture which favoured fault and opted for Resolution’s “notification” scheme in which one or both parties confirm their intention to divorce.  The report examines only its own internal evidence and relies on a survey of a poorly-informed general public.  It concluded,

The decision to divorce should be taken by the parties themselves.  In the twenty-first century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down.  That should be a private family matter, properly determined by the parties, not the state.

There was no recognition, as Munby had recognised, that removing the decision entirely from the state would be an “extremely radical departure” from existing law and a redefining of the relationship between citizen and state.  Nor was there any perception of the very different divorcing behaviours of wives and husbands, or the likely unequal impact of reform.  Trinder’s was a militant agenda.

Resolution advocate a “no-fault” divorce process, that is, a process which does not require the petitioner to make allegations of fault against the respondent.  This is misleading, since there is already a process for no-fault divorce, as explained above.

What Resolution really want is divorce-by-consent, that is, the option for a couple to agree between themselves that they want a divorce and a process which enables them to do so without recrimination.  Again, this is misleading, since the existing process allows for this, if the couple have been separated for two years.

What Resolution propose is—

a new divorce procedure, where one or both partners can give notice that the marriage has broken down irretrievably.  The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised.

This would have the advantage of reducing the two-year wait to six months.

Now, some aspects of Resolution’s campaign are concerning.  Their intervention in the Supreme Court appeal on the basis of a misinterpretation of the law is extraordinary.  We might also speculate that their guidance of Mrs Owens away from a new petition which might well have been successful into two highly publicised appeals was a deliberate attempt to gain as much publicity for their campaign as possible and to push Parliament into legislative action.  Their presentation of divorce by consent – which has always been anathema to legislators – as no-fault divorce also strikes me as deliberately dishonest.

The vigour of their campaign, and the fact that senior family judges such as Sir James Munby and Baroness Hale have repeatedly made speeches and added codas to their judgments advocating for no-fault divorce, apparently in opposition to their duty to uphold the law, fills one with misgiving.

The real issue with their proposal, however, is what happens when there is no consent.  After all, no-fault divorce by consent would not have aided Mrs Owens because her husband would not have consented.

The answer, though they do not elaborate on it, seems to be that under the new proposal, even if only one party thinks that the marriage has broken down irretrievably, a court will have to grant a divorce after the statutory six months.

That isn’t no-fault divorce and it certainly isn’t divorce by consent, it is unilateral divorce, and that’s an entirely different proposition.

Professor Stephen Baskerville, for example, calls this—

a unique and unprecedented legal anomaly in which one spouse could end a marriage with neither agreement nor fault by the other and break the marriage contract without liability for the costs.

Robert Whelan, former deputy director of independent think-tank Civitas, said that the—

essential element of contract law is abrogated.

Resolution’s members will no longer need trouble themselves about justice, about which party is responsible for the breakdown of a marriage, since both parties can be held responsible.  The laudable attempt to lessen the stress of divorce takes divorce as a remedy to breach or abuse away from the injured and legally innocent party and hands it instead to their abuser: what was intended as a measure to protect the integrity of marriage is made a route out of a marriage with which one party has become bored.

Far from eliminating the concept of fault, unilateral divorce imposes fault on the innocent party, who can be summoned to court despite having done nothing criminal and under a presumption of guilt for which there can be no defence.

Sir Edward Leigh MP has condemned no-fault divorce, claiming that evidence from countries such as the United States and Sweden shows that no-fault divorce has a—

demonstrable negative impact on income and educational achievement, with increases in anti-social behaviour.  Women become poorer, single mothers have to work longer hours, and children become more disadvantaged.

He warns,

It would be perverse to suggest it’s worth risking devastated lives for the rest of society just to tidy up the legal affairs of those couples who believe their marriage has irretrievably broken down.

Family lawyer Joe Robertson, Vice President of the Hampshire Law Society says unilateral divorce—

could inadvertently become a tool of emotional abuse and undermine stable families… There would be no opportunity for the respondent to be heard and no proper period for reflection.  Coupled with the rapid advent of online courts… divorce could be the click of a mouse away at the whim of one party in the heat of an argument.  A marriage created by consent but dissolved unilaterally would cease to be a legal union at all.  It would be the ultimate symbol of a consumer-led throwaway society and vulnerable women and children will be most at risk if things go wrong.

The Coalition for Marriage fear that unilateral divorce would “reduce the status of marriage to a tenancy contract”, punish the party who remained faithful to their vows, increase the number of divorces and put the most vulnerable at risk,

Weakening and trivialising an institution does not reform it, it breaks it.

Presentation to the Fourth International Conference on Men’s Issues, 2018

As requested by some people yesterday, here is the presentation I did for the Fourth International Conference on Men’s Issues, 2018.

In 1971, social worker Florence Rush delivered a speech to a feminist conference on rape held in New York which was received with rapturous applause.

Sexual abuse of children is permitted because it is an unspoken but prominent factor in socializing and preparing the female to accept a subordinate role: to feel guilty, ashamed and to tolerate through fear, the power exercised over her by men…

The female’s early sexual experiences prepare her to submit in later life to the adult forms of sexual abuse heaped on her by her boyfriend, her lover, her husband.  In short, the sexual abuse of female children is a process of education that prepares them to become the wives and mothers of America.

“Not in 100 years,” wrote the journalist Beatrix Campbell in 1988,

had patriarchal society been so profoundly and publicly confronted by the scale of men’s sexual abuse of children.  Male sexuality was the problem, but in the great sex scandal of the 1980s that had become almost unsayable.

This vile ideology informs opposition to fathers’ contact following separation.

It is also the ideology which informed the growth of social services throughout the 1970s and 80s, which was characterised by the Believe the Child movement and a series of scandals involving belief in satanic ritual abuse.

A child protection system is essential, but it has taken a form in which the interests of children are made subordinate to a virulently anti-male, anti-family cult.

My principal area of interest is in family law and what drives it.  I have written three books:

  • The Family Law A to Z – co-written with my wife, Ruth, and intended for litigants, McKenzies and students;
  • An Exercise in Absolute Futility – my first attempt at explaining how we have arrived with the system we have;
  • The Carnival of Human Misery – my second attempt. The title comes from an address by Sir Paul Coleridge to the Resolution National Conference in 2008.

Following a career in theatre and television, I have worked at a Further Education college for the last 16 years, which is long enough to observe patterns and trends, and the one that is most evident is the rapid decline in adolescent mental health.

Support is difficult to access, and the commonplace accusation that a young person must attempt suicide at least once to access CAMHS is not far from the truth.

The consequence is that only a quarter of adolescents are getting the support they need and a fifth are being turned away.

The Government is so concerned by this and by the inability of the NHS to cope that it issued a Green Paper last December, pledging an extra £1.4 billion over the next five years.

One policy is to extend responsibility to schools and colleges, and a couple of weeks ago my colleagues and I were required to do a level 2 qualification in Understanding Children and Young People’s Mental Health.  Early completion earned us an extra day’s holiday which is how I come to be here on a Friday.

Let’s establish some numbers.

The Government’s Green Paper reported that 9.6% of children have a diagnosable mental health disorder; this incidence increases with age and is more prevalent in boys.

So, in a typical class of 30, two boys and one girl will have a diagnosable disorder.  Some may have multiple problems.

An alternative picture was put forward in November by the Marriage Foundation.

They found that 27% of fourteen-year-olds reported mental health symptoms.  That’s 8 children in a class of 30.

I had wanted to show you some figures showing changes over time, but they do not exist; indeed, The British Psychological Society says,

We do not know the scale of the problem … we simply do not have accurate information from which to gauge the state of children and young people’s mental health nationally.

This slide shows how boys and girls are affected differently.

The next question is why so many young people are suffering poor mental health.

This question was asked at the training I attended, and various suggestions were put forward, from poverty to exam stress.

But none of these explanations accounts for the relatively sudden rise in the last 5 years or so.

I want to put forward four possible explanations.

The first is the transformation of children into consumers, who must have the latest phones, the trendiest trainers, and the pressure this places on parents and on household finances.

One young man in my class is reluctant to come to college – and to school before that – because his family is too poor to afford these things.  This has severely impacted on his education.

UNICEF talk about “compulsive consumerism” – parents showering children with toys and designer clothes, rather than spending time with them.

The second factor is social media, particularly via smart phones.

More teenagers now have a smart phone than a father.

Teenagers are using these up to eight hours a day and their use in classrooms is becoming a real problem.

Today’s teens stay in their bedrooms, interacting with the world virtually.  When they “hang out” with their mates, it is via a smart phone.  Only half of teenagers go out on dates.

This is why teenage pregnancy has now fallen to its lowest levels, though it is still the highest in Europe.

Numerous studies link smart phone addiction to mental health problems.  The more time they spend on their phones, the more unhappy they are.  Heavy phone use increases the risk of depression by 56% and the risk of suicide by 35%.

The third factor is the programme to institutionalise childhood.

Children are institutionalised very early, often at just a few weeks old; they are expected to conform and have reduced opportunities to interact with adults and to play.

This is the result of the failure of successive governments to reform Gordon Brown’s policies on child care.

Brown poured more than £21 billion into “childcare”, pushing up prices, so that by 2004, a typical nursery place for a child cost nearly £7,000 a year.

Brown made benefits conditional upon a mother actively seeking work, with the result that, by last year, two thirds of single mothers were back in work.

The other result is that parents spend less time with their children because they must work longer hours to pay other people to look after them.

The UK is one of only 6 European countries where children start school at 4 or 5, the rest start at 6 or 7 and this is associated with less hyperactivity and better academic outcomes.  Other studies show that the reduction in childhood play is leading to reduced synaptic development, reduced intellectual development and literacy, and increased stress and other mental health problems.

In 1998, Anthony Giddens, one of the engineers of the New Labour project, explained in The Third Way how the “democratisation” of the family demanded that responsibility for childcare be shared not only between men and women but also between parents and non-parents.

He proposed that in the “democratic family”, parents would have to “negotiate” with the state for authority over their children.

In Scotland, parents and government are locked into a desperate battle over the Named Person Scheme whereby each child will be allocated a state employee – a teacher or social worker – who will be able to make decisions on behalf of the child where the parents refuse to make a state-approved decision.

For example, if parents do not consent to their child changing gender, the Named Person will be able to provide consent instead.

The Supreme Court has blocked the scheme for now, but the government has not abandoned its attempt to impose it and is currently operating the scheme despite the fact that there is no legislation in force.

It is worth repeating what the Court said,

Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world.

The final factor is family structure.

In their study, the Marriage Foundation found a strong correlation between family structure and adolescent mental health.

A surprise finding was the high level of mental health problems, which was higher than previous studies had found.

Another surprise was the difference in health between intact married and cohabiting families.

Cohabiting families are inherently unstable.  In married families parents make a public commitment to each other, but in cohabiting families, they do not, usually because of one party’s unwillingness to commit.

The most damaging influence on children isn’t their parents’ unhappiness; it is this uncertainty and instability.

Divorce is in overall decline, after reaching a peak in 1991.

But what is driving family breakdown isn’t married couples divorcing; it is the failure to marry and the tendency of couples to cohabit, possibly under the false belief in Common Law Marriage.

Cohabiting couples are the fastest growing household type in Britain, and make up 15.7% of households, but 52% of breakdowns.

Of parents who are still together by the time their children reach 15, 93% are married.

So, what is it about family breakdown that is so damaging to children?

The feminist answer is that it is witnessing parental conflict which harms children, but the reality is that high conflict is a feature amongst only 2% of parents and only 9% of those who separate.

The Marriage Foundation study showed how father-absence increases a child’s likelihood of having mental health problems.

Fatherlessness is the great scourge of our generation.

One child in three doesn’t live with his father.

One child in four doesn’t even consider his father a part of his family.

Nearly 50% of fifteen-year-olds no longer live with their fathers, whereas in Finland the figure is only 5% and the OECD average is 15.

The UK has some of the worst family stability in the world.

Christian Guy from the Centre for Social Justice says,

Timid politicians are becoming numb to Britain’s sky-high family breakdown rates.  Behind too many front doors, instability damages adults and children.  Yet, as these OECD figures show, broken families are not some inevitable feature of modern society or social progress.

He demanded a Cabinet-level Secretary of State for the family to coordinate pro-family policies across all government departments, and to ensure government intervention is family-friendly, something David Cameron promised but never delivered.

The right government policies, he said, could reduce the figure from 50 to 20%.

Two measures a government could introduce would be to counter family breakdown by making a clear commitment to marriage and to commence an objective evidence-based investigation into the family justice system.

Instead, it seems set to legislate to provide legal protection for cohabitation – following a recent Supreme Court ruling – and has no intention of legislating further on parental disputes, contrary to Theresa May’s pledge in 2004,

In my first month in Government, I will publish a Bill to give a presumption of co-parenting and a right for both parents to be involved in bringing up their children, when couples separate.  We will ensure that the law serves the best interests of the child – and children deserve to see both parents.

Our Country deserves a better system of family justice: one that is open, fair and accountable; a system that protects children and a system that recognises as we do, that the best parent is both parents.

The common explanation for father absence, embraced by politicians and legislators – is that fathers are simply irresponsible.

David Cameron, for example, said,

I want all fathers to stand by their responsibilities and that means hunting down absent dads and making sure they’re paying their child maintenance.

Because they think they know the answer, there is no will or funding to investigate the issue.

The most recent UK study of father absence was by Jonathan Bradshaw of the University of York.  In 1998.  He said,

Non-resident fathers want close, intimate and fulfilling relationship with their children.  The majority want to fulfil all their parental obligations, social, emotional and financial, but it seems that one is unsatisfactory without the others… There is no need to enforce parental obligations – they exist and are accepted already.

Professor Edward Kruk says that ninety percent of fathers’ disengagement is the result of obstruction by the child’s mother.

He suggests fathers disengage in order to spare their children the ordeal of having to witness their degradation.

His most disturbing finding is that it is the fathers who were most involved prior to separation who are the most likely to disengage afterwards.

Irish Times columnist John Waters says,

I do not suggest that Irish men never walk away from their children.  But even those who do so, cannot be said to have made free choices: to some extent, they follow a pattern dictated less by individual conscience than cultural conditioning.  A society that honoured fatherhood would not have this problem.

Contact is whatever relationship the state allows a separated father to have with his children.

Bob Geldof called it,

Life in an hour.  Love in a measured fragment of State-permitted time.

Next Friday, on his 70th birthday, Sir James Munby will leave office as President of the Family Division of the High Court of Justice.

In 2004, Munby gave judgment in the case of Re D, in which a father was forced to abandon his fight to maintain contact with his daughter.

From the father’s perspective, the last two years of litigation have been an exercise in absolute futility.  It is shaming to have to say it, but I agree with his view.  I feel desperately sorry for him.  I am very sad the system is as it is.

Re D was widely reported in the media, as Munby intended, because he added to the judgment a comprehensive criticism of the family justice system.

The publicity was widely welcomed by father’s groups, and it bolstered the public perception that the family justice system was biased against fathers.

It is disappointing that during his stint as President, Munby hasn’t addressed these issues and has focused instead on a controversial new C100 application form and on digital divorce.

Perhaps his recent comment that dysfunctional and broken forms of family represent “a reality which we should welcome and applaud” provides a clue to his true politics.

Unlike fathers’ groups, the campaign against fathers’ involvement is supported by leading feminist academics and political figures and is extremely well funded.

It has achieved this by hitching a ride on the domestic violence industry, with its already well-established myth of male violence and abuse.

This has conferred upon the campaign two benefits: credibility and cash.

 

One of the targets of this campaign is the guidance given to judges regarding how they should approach applications made by fathers for contact, Practice Direction 12J.

The origins of 12J lie in four similar cases the President, Elizabeth Butler-Sloss, was hearing in 2000 in the Court of Appeal.  Allegations of domestic violence had been made in all four.

The Official Solicitor commissioned guidance on the cases from two child psychiatrists who specialised in the sexual abuse of children by men.

They advised that the court should begin by demanding to know the motivation for such an application.

They concluded that contested contact would always be harmful, and should take place only where it demonstrably benefited the child.

 

But this wasn’t enough for the feminist organisation Women’s Aid, who wanted a presumption of no contact at all.

They published a document claiming that 29 children had been murdered by their fathers during court-ordered contact in the preceding 10 years.

They maintained that the courts were so biased in favour of paternal contact that they were knowingly and repeatedly sending innocent children to their deaths.

They contended that judges, magistrates, barristers, solicitors, expert witness and family court advisers should all be held accountable for the deaths.

A review of the document by Lord Justice Wall revealed that eighteen of the twenty-nine children had never been subject to any court proceedings at all.  The deaths of eight could not have been predicted or prevented.  The remaining three had been consent orders brought to court for judicial sanction; there had been no reason for the court to have refused the orders.

Women’s Aid produced a second document in 2016, which described how 19 children had been murdered during contact sessions between 2005 and 2015.

In a foreword, Chief Executive, Polly Neate, said,

there is a deeply embedded culture that pushes for contact with fathers at all costs.

The methodology of both reports was to trawl through Serious Case Reviews, selecting only those which supported their case.  A less partial examination of the same evidence showed that hundreds of children had been killed at the hands of their mothers over the same periods.

When Jack Straw, the Minister for Justice, launched the Family Justice Review in 2010, a great opportunity to reform the system to protect children’s relationships with their fathers was missed.

The goal was to come up with a system which would be quicker, simpler, fairer and, above all, cheaper.

The review was chaired by Sir David Norgrove, sacked board member of Marks and Spencer.

Evidence was sought from very few pro-shared parenting organisations which reported that fathers found the courts of little help when their relationships with their children were threatened.

More representations were received which claimed significant damage was done to children when legislation created expectations about a substantial sharing of time.

The nature of this “damage” wasn’t specified and no evidence was offered. There had never been any such legislation.

The Final Report stated,

We remain firm in our view that any legislation that might risk creating an impression of a parental “right” to any particular amount of time with a child would undermine the central principle of the Children Act 1989 that the welfare of the child is paramount.

The academic evidence considered was limited entirely to the work of three Australians: two academics, one subsequently discredited, and a retired judge.

The review insisted,

Evidence has shown increased litigation (false) and that the change has contributed to damage to children because the term “meaningful” has come to be measured in terms of the quantity of time spent with each parent, rather than the quality of the relationship for the child.

This was disingenuous: courts can only rule on quantity, not quality.

The Norgrove panel completely ignored the huge body of evidence supportive of shared parenting.

Professor Patrick Parkinson, president of the International Society of Family Law, made a detailed refutation of all the references to the Australian experience in Norgrove’s report and summed up,

Almost none of the claims made by the Norgrove Committee, or which were made to it and relied upon by the Committee, can be sustained.

The Coalition was unconvinced by Norgrove’s findings on shared parenting,

The Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation.

A working party launched a consultation into cooperative parenting which led to a presumption incorporated into the 2014 Children and Families Bill,

A court is to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

One of the MPs on the Bill Committee, Caroline Nokes, explained,

By inversing the subject of the legal right, and introducing a clause which gives this “right” not to the parent, but to the child, the Government achieves the twin objectives of enshrining shared parenting, whilst maintaining the paramountcy of the child’s welfare.

Tragically, the clause was emasculated in the Lords by an amendment specifying that involvement did not mean any particular division of a child’s time.

Lord Justice Ryder, the judge charged with modernisation, said the clause would have no effect on judicial practice, while Edward Timpson MP – who had pushed through the original clause – admitted nothing would change and the exercise had been designed to correct the perception of anti-father bias.

 

Women’s Aid continued their campaign for an alternative presumption of no paternal contact and reform of Practice Direction 12J.

Their briefings dominated a Commons debate in September 2016 on how the family courts dealt with cases involving allegations of domestic violence, and a follow-up session on Wednesday.

They produced further reports jointly with CAFCASS and with Queen Mary University of London.

They want to restrict the right of those accused of domestic violence to cross-examine their accusers and to enable greater use of injunctive orders to prevent those accused of domestic violence from making applications.

The only counter to this narrative – as far as I can see – has been a misguided attempt by Families Need Fathers to claim thousands of women were seeking Non-Molestation Orders in order to claim legal aid.

 

The family judiciary capitulated, appeared to accept the scandalous and groundless allegations made against it and issued a redrafting of the disputed Practice Direction 12J.

The alterations perpetuated myths: for example, that men exploit the court process to continue the abuse of women on court premises.  The burden of proof was shifted onto the applicant to demonstrate how his involvement would benefit the child.

A wider definition of domestic abuse meant that the mere existence of a disputed application could be interpreted as exposing the child to an unacceptable risk of harm, leading to such applications being rejected as a matter of routine.

At the very heart of the child protection system, and thus of family justice itself, is an apocalyptic belief in a battle between good and evil: a secular eschatology in which social workers and magistrates represent the last defence between innocent children and mothers and their violent and abusive fathers.

In the last century, as the millennium approached, this developed into a genuine belief in satanic covens, ritual infanticide and sacrifice.  Children were taken from their parents and interrogated, sometimes for days, until they gave the answers social workers wanted to hear.

As the millennium passed, the impulse became secularised again, belief in covens turned into belief in paedophile rings, but religiously inspired thinking became incorporated into the language of social work.

In his magisterial book, the Secret of Bryn Estyn, about an alleged paedophile ring in a north Wales care home, Richard Webster warns us,

We should resist the temptation to fall victim to one of the greatest fallacies of all ― the idea that it is the destiny of all rational societies to leave behind them superstition and unreason and to pass into an era where witch-hunts and persecution have no place.  This… is one of the great delusions of modern rationalism.  The sobering truth is that the more confident we become in the rigour and restraint of our own rational disposition, the more likely we are to become blind to those irrational impulses which are part of the very essence of human nature and which are destined to endure as long as human nature itself endures.

The current witch-hunt is not the product of some shallow and temporary aberration which floats upon the surface of our culture.  The modern child protection movement out of which it has grown is itself a revivalist movement, deeply rooted in some of our most ancient religious orthodoxies.  It is, in effect, a modern secular church which is just as powerful as traditional churches have been in the past, and whose doctrines are almost as pervasive.

We should face up to the fact that the revivalism of the modern child protection movement is something which goes deep into our own cultural history and our own psychology. It is only if we first understand the extraordinary depth and inclusiveness of this movement, and the extent to which we have all been influenced by it, that we are likely to be able to moderate its destructive power and deal effectively with the threat it poses both to innocent people and to justice itself.

 

Thank you very much.

An Error of Judgement

CAFCASS, the court welfare agency, has banded together with Women’s Aid to come up with a report on “Allegations of domestic abuse in child contact cases”.  This is unfortunate, CAFCASS is an agency in which men, just as much as women, should be able to trust, and they have been doing rather better in recent years than their truly dreadful performance in the first 10 years or so of their existence.  For them to be working cheek-by-jowl with an openly anti-male, feminist propaganda organisation such as Women’s Aid is a profoundly retrograde step and a regrettable error of judgement by their CEO, Anthony Douglas.

This is, to begin with, a study based on a very small sample of 216 cases, allegedly drawn at random from 15,160 cases during 2015/16; without independent confirmation, it is difficult to be confident they are representative.  The report relies exclusively on the content of the CAFCASS case files, which is necessarily limited; the other information in the court bundle and the court’s final decision are not utilised.  In my work “An Exercise in Absolute Futility” I observed that the HMICA courts inspectorate had had this to say about CAFCASS case files:

[C]ase files did not record what work had been done or show that the information acquired in a case had been analysed.  They neither recorded what information had been used to reach a conclusion nor stated why other information had not been used.  Standards on record-keeping were not followed.  As a result it was impossible for inspectors to ascertain whether or not children were adequately being safeguarded.

Inspectors found that reports were neither clear nor fair and were based on limited observation of children with their parents.  They excluded key information and failed to consult other professionals; they included information which was irrelevant, inappropriate, or subjective and did not serve children’s interests.  The reports drew conclusions without justification and failed to gather evidence when serious allegations had been made, allowing unsubstantiated allegations to influence recommendations.  They ignored the wishes of children, even when they were old enough to express them clearly.  Family Court Advisors habitually expressed views beyond their professional expertise; they ignored guidelines on report writing; they did not differentiate between evidence and opinion; reports were poorly written, badly spelt and ungrammatical, exposing a lack of basic education.  There was no evidence that a consistent assessment model was being used, and no signs that national practice models were being rolled out, despite claims to the contrary.

Recommendations were made which had not been discussed with the parties and which were not practicable.  FCAs jumped without intermediate steps from information gathering to a solution, they outlined their own preferred remedy and sought the agreement of parents and children, rarely exploring the positives and negatives of their preferred option.

This is the very shaky foundation on which the CAFCASS/Women’s Aid report is built.  The authors make clear that no attempt is made to verify the allegations, so these can only be cases in which allegations have been made: the authors cannot make the claim that they are cases actually involving domestic violence.

Notwithstanding this, the first conclusion drawn refers to the effect on children of domestic violence; no effort is made to distinguish between the effect on a child of actual DV and the effect of a parent making a false allegation against the other.  I would have thought that distinction was vital.

The second conclusion states, “Domestic abuse was a common feature within the sample”.  This is nonsense: the common feature is the allegation of domestic abuse.  For all the authors know, every allegation in the sample could be false.

Conclusion number 4 is that fathers were three times as likely to have allegations of domestic abuse made against them as mothers.  Given that fathers are not three times as likely to be perpetrators, some explanation of this disturbing statistic is required, but none is given.

As other studies have found, finding-of-fact hearings are seldom ordered; this may be because feminist academics have fostered the view that what matters is not the veracity of an allegation but its effect on the child.  The authors also note that the evidence gathered by other agencies – such as the police – is of little use to the courts.

Under “Conclusions about legal outputs”, the authors note that unsupervised contact is more commonly ordered where allegations have not been made, an observation so obvious, surely, as to require no declaration.  That it has been declared implies that contact might – indeed should – be supervised even where no allegation has been made.  The authors justify such a stance by observing that arrangements made by mutual agreement “could be demonstrative of a context of fear and controlling behaviour”.  Or they could be demonstrative of parents working cooperatively in the best interests of their children.

As I write this, I am watching the BBC docu-drama “Against the Law”, about the prosecutions in the 1950s against men who had committed “gross indecency”; it is difficult not to compare the persecution of homosexual men then with the persecution now of fathers.  It is no less devastating to the men concerned and no less irrational.  It is notable that homosexual activity among women had never been illegal since the introduction of such legislation in 1533.

The report makes no recommendations as such, which is only right given the unreliability of conclusions drawn from such a small sample.  Commenting on the report, Anthony Douglas insists, as he must do, “we were satisfied that in each case action had been taken to manage risk relating to domestic abuse.”  The new CEO of Women’s Aid, however, Katie Ghose, cites the long-discredited report on “19 Child Homicides” to repeat the wholly unsubstantiated and mischievous allegation that the courts routinely order contact where they know it to be unsafe.  That CAFCASS is now being enlisted to propagate this falsehood is disgraceful.  I am sure Ghose fails to see the irony.

Dancing Attendance

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The Mother’s Holiday

In 2015, a divorced mother applied to her daughter’s school, Bembridge Primary School on the Isle of Wight, to be allowed to take her daughter – subsequently referred to by the court as “Mary” – out of school for a week from 9th February to go on holiday.[1]  The school refused: the rules are clear, absence from school is allowed for sickness and unavoidable cause, for a single day’s religious observance, and for exceptional circumstances.  Holidays do not fall into these categories, and the school was quite within its rights, and its obligations to Mary, to refuse the request.  Section 444 of the Education Act 1996 reads,

(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

(2)Subsections (3) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.

(3)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school—

(a) with leave,

(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or

(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.

(8)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(9)In this section ‘leave’, in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school.

Nevertheless, the mother took her daughter out of school regardless, and the school contacted the Education Welfare Officer, leading to the local council imposing a fixed fine of £60, which she paid.  Many parents consider these fines – which rise to £120 if not paid within twenty-one days – worth paying in order to benefit from cheaper family holidays.  In the 2015-16 academic year, 147,655 such fines were imposed, raising revenue of £8,859,300.[2]  These statutory fines give parents an opportunity to resolve these cases without going to court, but large numbers of parents refuse to pay them, resulting in some 20,000 prosecutions over the same period.[3]  The courts can impose a maximum fine of £2,500 or a three-month prison sentence.

The Father’s Holiday

At about the same time (the holiday bookings were made on the same day), Mary’s father, Jon Platt, applied to Bembridge Primary School to take his daughter out for a holiday with him from April 12th to 21st, 2015.  Again, quite properly, the school refused (on February 9th) and warned that a fixed penalty notice would apply.  Again, the parent ignored the refusal, and took his daughter to the Disney World resort in Florida.

The school sent a Fixed Penalty Notice Referral Form to the local council’s Education Welfare Officer (EWO), Karen Pothecary, who authorised the issue of the Notice on May 14th, requiring the father to pay £60 by June 4th.  Platt failed to do so and was sent a further Notice, requiring him to pay £120 by June 10th.  When he did not pay this, he was sent a letter before action on July 1st explaining the council’s intention to prosecute.  This time he did react, by email and telephone; the EWO, however, believed that the penalty notice had been correctly applied and proceedings were brought on October 12th in the Isle of Wight Magistrates’ Court.

The Magistrates’ Court Hearing

Platt pleaded not guilty.  The law – given in Section 444(1) of the Education Act 1996 – requires parents to ensure that their children attend school “regularly”, but the word is not defined; there is no specific prohibition in the Act against taking a child out of school for a holiday.  The defence relied on the case London Borough of Bromley v C, [2006] EWHC 1110 (Admin) which concluded that the court should understand “regularly” by taking into account attendance over the whole academic year.  The prosecution argued that the court should only be considering the attendance during the period in question: between April 13th and 24th; there was no attendance during that period and thus the offence was clear.

The Magistrates addressed the question of whether Mary was a “regular attender” at school.  They looked at Mary’s attendance which had been 95% prior to the holiday and was now 90.3% when the holiday was taken into account.  Both figures were within the school’s guidelines of 90-95%, although 90% represents pretty poor attendance; this level of absence, if sustained, will adversely affect a pupil’s academic attainment.  The LA had not established a case that Mary had failed to attend school “regularly”.

The High Court Hearing

The LA appealed, and the case was taken to the High Court.[4]  The question was whether the Magistrates had erred in law by taking into account Mary’s attendance outside of the dates of the holiday.  On 13th May 2016, a Divisional Court of the Queen’s Bench Division decided that the Magistrates had not so erred.  The prosecution also drew attention to the provision of Section 7 of the Education Act which requires,

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable —

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.

As we shall see, the wording “full-time” here provides a gloss under which the word “regularly” may be interpreted.

By this time, Platt had extended the services of his company, JMP Partnership, which specialises in PPI recovery, to include advice to parents on taking their children out of school during term time.  I’m no lawyer, but I think his interpretation of the law confuses between statute law and the law established by legal precedent.  The cases he relies on do NOT represent binding precedents.  He advises parents that magistrates must take account of a child’s average attendance over the course of an entire academic year (following Bromley) but, as we shall see, this is not binding.  He relies on a case from 1881 which held that where two or more interpretations of a statutory provision are reasonable, the court must choose the one which results in the lesser penalty.  He also argues that because “nobody REALLY knows what ‘regularly’ means, it is too vague to be the basis of any criminal sanction”; the High Court considered this contention but expressed no view upon it.

The Supreme Court Hearing

Again, the LA appealed, this time with the financial support of the Department of Education, and the case was heard by five judges of the Supreme Court, Lady Hale, Lord Neuberger, Lord Mance, Lord Reed and Lord Hughes who were unanimous in their finding.[5]  Hale’s judgment summarised the events thus far, and confined itself to considering the meaning of the phrase “fails to attend regularly”, examining three possible interpretations.  Without a specific definition of the term in the legislation, the task for the court was to determine what the intention of Parliament had been when incorporating the phrase for the first time into the Education Act 1944.  Giving judgment, Baroness Hale looked first at the history behind the legislation.

History

Section 5 of the Elementary Education Act 1870 imposed an obligation on school districts to provide “sufficient amount of accommodation in public elementary schools” for all the children of the district “for whose elementary education efficient and suitable provision is not otherwise made”.  Forcing parents to make their children available for this education was politically sensitive, however, as many parents were constantly moving in order to find work, and some relied on the income provided by their children.  Section 74, therefore, empowered the school boards to make bye-laws (1) requiring parents of children between five and twelve years of age to cause them to attend school, unless there was some reasonable excuse, (2) fixing the times when children were required to attend school, with two exceptions, one of which was for “any day exclusively set apart for religious observance by the religious body to which his parent belongs”, and (3) imposing penalties for breach.

“Reasonable excuse” included that the child was receiving alternative instruction, that he had been prevented from attending by sickness or some other unavoidable cause and that there was no suitable school within reasonable walking distance, which could be up to three miles.

In 1876, Section 5 of the Elementary Education Act prohibited the employment of children under ten, and of those between ten and thirteen who had not achieved an appropriate standard of education; Section 4 for the first time imposed upon parents a duty to cause their children to be educated in the “three Rs” of reading, writing and arithmetic.  Where parents failed to do this without reasonable excuse, local authorities could apply for court orders requiring the children’s attendance.

Section 2 of the Elementary Education Act 1880 required school boards to introduce bye-laws compelling attendance, though they could set their own timetables.  Many boards fixed the time at “the whole time for which the school selected shall be open for the instruction of children of a similar age”.

In 1918, the school leaving age was raised to fourteen and in 1921 the Education Act consolidated the existing duties of parents and local education authorities.  Case law established that a parent was required to ensure his child attended at all times set out in the bye-laws and that an offence could be committed if a child missed a single day of school, regardless of his attendance at other times.

Hale quoted Lord Hewart CJ in Osborne v Martin (1927) 91 JP 197,

It was never intended that a child attending the school might be withdrawn for this or that hour to attend a lesson thought by the parent to be more useful or possibly in the long run more remunerative.  The time-table and discipline of a school could be reduced to chaos if that were permissible.

The Education Act 1944 extended a parent’s responsibility to have his child educated in the three Rs to ensure that he received “efficient full-time education suitable to his age, ability and aptitude, either by regular attendance at school or otherwise”.  The LEA could issue a school attendance order requiring the parent to register the child at a particular school; failure to comply was an offence.  A statutory offence was also committed if a pupil registered at a school “fails to attend regularly thereat”.  Reasonable excuse for absence was replaced by a finite list: absence with leave of the school, sickness or unavoidable cause (affecting the child, not his parents), a day’s religious observance, and the lack of provision within walking distance where no alternative transport was provided.

The Education Acts of 1993 and 1996 consolidated these provisions; Section 7 of the 1996 Act added to the parent’s duty the requirement that the child’s education must be suited to “any special educational needs he may have”.  Section 444(1) preserved the offence committed where a child fails to attend school “regularly”.  It also introduced at s.444(1A) a more serious offence committed when a parent knows his child is failing to attend and has no reasonable explanation for his own failure to ensure attendance.  The circumstances in which absence is tolerated remained the same.

Sections 444A and B contained the provisions for the penalty notices, offering a parent the opportunity to avoid a criminal conviction by paying a fine.  LEAs were required to draw up their own Codes of Practice for administering these rules; these guidelines had become quite relaxed, with schools commonly allowing absences of ten school days a year, but in 2013, Education Minister Michael Gove issued new guidance reminding schools of their legal responsibilities: schools should allow absence only in exceptional circumstances.

The Court’s Interpretation

Hale observed – as I think is evident – that the movement of the law since 1870 had been to consolidate and tighten existing legislation.  Prior to 1944, a parent was liable to conviction if his child missed a day or even half a day when required to attend; case law was concerned with the scope of the statutory exceptions.  Parents are not obliged to use state-provided education – they can home-school their children or pay to have them educated privately – but if they do take advantage of state provision, they must abide strictly by its rules.

Hale resisted the idea that the introduction of the phrase “fails to attend regularly” signified a change in the existing law or a change of direction by Parliament.

The idea that “regularly” meant “at regular intervals” was easily dismissed: this could cover attendance every Monday, or where lateness was consistent; either was clearly far from Parliament’s intention.

Hale objected to “sufficiently frequently”, an interpretation employed or hinted at in some case law, on ten grounds:

  1. It can cover attendance which is not compulsory and for which there are no laws.
  2. It does not meet the intention of the 1944 Act to increase the scope and character of compulsory state education, it is implausible that Parliament should have wanted to relax the existing provision.
  3. It does not meet the intention of the 1944 Act to enhance parental liability.
  4. The exception to allow a child leave of absence “on any day exclusively set apart for religious observance” suggests the intention that a single day’s absence should justify prosecution.
  5. In Section 444(6), dealing with children of parents of no fixed abode, the requirement to attend “as regularly as the nature of that trade or business permits” does not use the word “regularly” to suggest a matter of degree but to indicate that the child should attend as often as he can.
  6. A pupil at a boarding school is expected to attend 100% of the time with no absence; why should the same not be expected of a pupil at a day school?
  7. In Section 444(7A), the absences of excluded pupils are to be measured by the day.
  8. If this were the interpretation intended by Parliament, it is too imprecise upon which to found a criminal offence, “The point is that, on this interpretation, the parent will not know on any given day whether taking his child out of school is a criminal offence”.
  9. (The reason the Secretary of State had intervened in the case) there are strong policy reasons why such an interpretation will not wash: unauthorised absences disrupt the education of the individual child and of the whole class in group learning. Teachers are expected to undertake additional work in enabling the absent pupil to catch up, perhaps to the detriment of the other pupils.  If all pupils in a class are liable to be taken out whenever it suits the parent, structured education becomes impossible.
  10. Finally, it is absurd to imagine that Parliament would have countenanced the removal of pupils during term-time either without authorisation or where authorisation has expressly been refused; “It is a slap in the face to those obedient parents who do keep the rules, whatever the cost or inconvenience to themselves”.

The only possible interpretation, therefore, as Martin Chamberlain QC for the Isle of Wight Council argued, is that the word “regularly”, from the Latin regula = rule, should be understood to mean “in accordance with the rules”.

  • Such a principle, Hale maintained, in conjunction with a “sensible prosecution policy”, such as the use of fixed penalty notices, justifies a situation where a relatively minor breach can lead immediately to criminal liability. The parent has two opportunities to avoid prosecution and a court can use its discretion to discharge the offence.
  • Prior to 1944, there was no objection raised to dealing with unauthorised school absence in this way; it was recognised that the importance of a child’s education justified a strict approach.
  • It is important that legislation which imposes criminal liability should do so in a way which enables everyone to know where they stand; Hale’s interpretation is the only one of the three which satisfies this requirement.
  • A school or governing body is empowered with the discretion to allow a child leave of absence in exceptional circumstances other than sickness and unavoidable cause, but where a school has decided that the circumstances are not sufficiently exceptional, only this interpretation is consistent with the provisions of Section 444(3)(a) and (9).
  • Section 7 of the Act requires a parent to cause the child to receive “full-time” education; that is, for the whole of the time when education is being offered to children like the child in question. Section 444 must be seen to work in harmony with this provision.

Hale concluded that “regularly” means “in accordance with the rules prescribed by the school”, and directed that the case should be returned to the magistrates with a “direction to proceed as if [the father’s] submission of no case to answer had been rejected”.  The consequence of this is that Platt, who has already spent £12,000 on the case, may well be required to pay the council’s costs as well.

Reaction

Needless to say, the decision has split opinion.  Prime Minister Theresa May approved,

What the Supreme Court has done is endorse the current position, which is right, which is that we recognise – and they’ve recognised – the importance of children being in school and getting the most out of their education but also recognise that there may be exceptional circumstances where a child needs to be taken out of school during term time and it’s right that the individual headteacher has that flexibility to make that decision.  I think that is the correct balance.[6]

Shadow education secretary Angela Rayner endorsed her view,

…If all parents took their children out of school in term-time because it was cheaper to get a holiday that way, then it would be chaos in our schools and it would affect all children.[7]

The Department for Education said,

We are pleased the Supreme Court unanimously agreed with our position: that no child should be taken out of school without good reason.  As before, headteachers have the ability to decide when exceptional circumstances allow for a child to be absent but today’s ruling removes the uncertainty for schools and local authorities that was created by the previous judgment.

The evidence shows every extra day of school missed can affect a pupil’s chances of achieving good GCSEs, which has a lasting effect on their life chances.

We will examine the judgment carefully and will update schools and local authorities as soon as possible so they are clear what the judgment means for them.[8]

Perhaps surprisingly, teachers’ groups were more equivocal; Kevin Courtney, general secretary of the National Union of Teachers, said,

Parents generally do all they can to keep children in school and teachers want them to do that.  However there will be occasions when families will have a planned holiday in term time – this can be for a many reasons such as family commitments or parents unable to take leave in the school holidays.

Fining parents is entirely the wrong route to be going down.  Many parents will be able to afford the fine and it will not be a deterrent.

This is yet another example of top-down measures being imposed on schools causing unnecessary tensions between head teachers and families.[9]

This misses the point that the fine is a way of avoiding prosecution; it is also strange that a policy which has been in place for a very long time is only now being questioned by the NUT.

Malcolm Trobe, Interim General Secretary of the Association of School and College Leaders expressed a view more sympathetic to the needs of both children and teachers,

It is vitally important that children attend school as close to 100 per cent of the time as possible.

Research clearly shows that even short breaks can have a detrimental impact on educational attainment.  Holidays should be taken in the 13 weeks that are allocated for that purpose each year, not in term time.

We were pleased that the Supreme Court also highlighted the fact that children missing school can be disruptive.  Teachers have to help these children catch up and the more pupils who are absent the greater the disruption.[10]

Legal commentators have observed that the case will inevitably lead to more prosecutions given that there is now no room for argument over whether a child has attended regularly; hence Hale’s call for a “sensible prosecution policy”.  Others welcomed the decision for establishing absolute clarity and for its fairness to the majority of parents who are prepared to toe the line.  They have called on the Department for Education to update the guidance given to schools as a matter of urgency.  Parents who still wish to withdraw their children for a holiday can do so on payment of a modest charge, which is a policy which may need revisiting.

Platt himself was unrepentant, insisting that he had “no intention” of pleading guilty when the case returns to the Magistrates’ Court and encouraging his supporters to vote out councillors who take a hard line on the issue.  He said,

The issue is no longer if it ever was about term-time holidays, it is about the state taking the rights of parents away when it comes to making decisions about their children.[11]

But again, this misinterprets the legal position, which is that parents have an obligation to ensure that their children receive education and attend school at all of those times during which education is provided for their particular child.  They have the right to take their children out of school and educate them at home or to opt out of the state system and send them to private schools, but they do not have the right, once they have accepted the provision of free state education, to disrupt their children’s education, and that of other children in the school, or to impose on teachers hours of extra work to help their child catch up.  Platt’s unfortunate daughter missed out on twelve days’ schooling in a single term, purely so that her parents could benefit from cheaper holidays.

Jon Platt and his supporters represent a modern breed of parent who has no respect for education, for teachers, for the law.  They teach their children that school doesn’t really matter, and they kid themselves that their children will learn more in a week at Disney World than in a week at school.  The high cost of holidays they complain about is a separate matter which should not be resolved through disruption to children’s schooling.

They run their lives according to what they believe to be their “rights”, with not a thought for what might be their responsibilities: to their children, to their children’s schools, to society more widely.  Rather than work as responsible adults to fulfil their obligations to their community, they are constantly seeking new rights which they can claim have been breached.  For them, free state education is not an extraordinary opportunity, historically and geographically rare, which should be embraced fully and conscientiously; instead, it is yet another entitlement, to be used or abused as they desire.  These are not the sort of parents who will offer their support to their children’s schools, offering to help organise events or outings, to join the PTA, to assist with transport.  Instead, they see the school as an extension of the state, to be challenged and humbled.  The message Platt is instilling in his daughter is “me, me, me” and everyone else be damned.

 

[1] These details are derived from Isle of Wight Council v Platt [2017] UKSC 28

[2] Campbell, P. (2017, April 07). Jon Platt Faces Defeat Over Term-Time Fines Court Battle. Retrieved from http://www.simpsonmillar.c.uk.

[3] Ibid.

[4] Isle of Wight Council v Platt [2016] EWHC 1283 (Admin)

[5] Isle of Wight Council v Platt [2017] UKSC 28

[6] Pells, R. (2017, April 06). Jon Platt case: School leaders welcome Supreme Court term-time holiday ruling. The Independent.

[7] Ibid.

[8] Yorke, H., & Mendick, R. (2017, April 06). Parents who took advantage of cheaper term-time fares prior to Supreme Court ruling could now be prosecuted. The Telegraph.

[9] Op. Cit. Pells, R. (2017, April 06).

[10] Ibid.

[11] Ibid.

Male Genital Mutilation, Part 2

 

Claimed Health Benefits

Amongst the Victorians, the mere presence of the male foreskin was believed to cause epilepsy, paralysis, malnutrition, hysteria, and other nervous disorders.[1]  Words such as “hygiene” and “sanitary” denoted cleanliness of the morals to the Victorians and not of the mind; removal of the foreskin effectively prevented masturbation and thus promoted mental purity.

The concept that circumcision is beneficial to health is not new: Philo of Alexandria (25BC – 50AD) argued that circumcision protected against the “severe and incurable malady of the prepuce called anthrax or carbuncle” (probably the ulcer of primary syphilis) and promoted the cleanliness of the whole body as befitted the consecrated order.[2]  He also recognised that it decreased pride and pleasure, hence enhancing the spiritual persona of the Israelite male.  The Jewish intellectual Moses Maimoinides wrote that circumcision both quiets lust and perfects what is defective morally,[3]

The fact that circumcision weakens the faculty of sexual excitement and sometimes perhaps diminishes the pleasure is indubitable.  For if at birth this member has been made to bleed and has had its covering taken away from it, it must indubitably be weakened.  In my opinion, this is the strongest of the reasons for circumcision.  Jewish men, sexually subdued and readily controlled by their wives, don’t stray into mischief.  The power of his member has been diminished so that he has no strength to lie with many lewd women.

The claimed health benefits for a ritual which clearly has nothing to do with promoting health continue to this day.  There are some medical conditions which may be relieved by the removal of the foreskin:

  • Phimosis – when the foreskin fails to separate fully from the glans. Separation is usually complete by the age of 3, but can be delayed until the age of 5 or later and affects about 1% of men at age 18.[4]  Waiting is usually the best option, but surgery is necessary in a very few cases.  Phimosis is also a complication of partial circumcision.
  • Balanitis and balanoposthitis – inflammation of the glans alone or glans and foreskin can result from poor hygiene, or allergies to soap, washing powders, latex or spermicides in condoms. Yeasts such as candida albicans can flourish in the warm, damp space between the glans and foreskin, particularly where there is a build-up of smegma, a collection of shed skin cells, oils and moisture.  Where inflammation occurs repeatedly, circumcision may be offered although fungicides, antibiotics and steroid creams are the more usual treatment.
  • In adults, an overly tight foreskin which makes sex painful.

There are other conditions which some claim can be avoided through circumcision:

  • Penile cancer – this is a very rare cancer associated with poor hygiene and smoking, and with phimosis and HPV infection. There is little evidence for the claims, and countries with the highest rates of penile cancer – such as the USA – also have high rates of circumcision.  Clearly, cancer cannot develop in a foreskin which has been removed, and amputation of the entire penis would provide complete protection against penile cancer.
  • Cervical cancer – there is some evidence associating circumcision with the more rapid elimination of the HPV virus which can cause genital warts and cervical cancer. Circumcision can thus reduce the time during which the virus can be transmitted.
  • AIDS – the surface of the glans and inner surface of the foreskin contain Langerhans cells which are targeted by the HIV virus; removal of the foreskin reduces the number of these cells and there is some evidence that this can reduce the transmission of HIV. Obviously, amputation of the entire penis would be an even more effective measure.

This evidence amounts to little more than that disorders of the foreskin can be prevented by its removal, a principle which might be applied to any organ of the body, including the brain.  Circumcision also diminishes the pleasure derived from sex and thus diminishes its frequency.

 

Legal Anomaly

Female genital mutilation was specifically outlawed by the Prohibition of Female Circumcision Act 1985.  The Private Members Bill was brought by Marion Roe (MP for Broxbourne), who recalled in 2003 that she had been “called a racist and I was accused of intervening in religious freedoms, cultural traditions and so on”.[5]  At the second reading of the Bill,[6] the Lord Chancellor, Lord Hailsham, offered his view that female circumcision was already unlawful under the Offences Against the Person Act 1861,

I must say this, because I believe that people are beginning to think that this is not against the criminal law.  I can only say that I am quite sure that it is against the criminal law as matters stand.  It may be an argument for the Bill; it may be an argument against the Bill.  But I am simply stating what I believe to be the criminal law at the present time.

He added that a minor cannot give consent, and that the parents, the surgeon, the anaesthetist and the nurses involved in female circumcision would all be guilty.  The proponents of the Bill persisted, however, because they wanted to send a specific message that female circumcision was unacceptable in Britain.  This largely symbolic status of the Act is underlined by the fact that it never resulted in any prosecutions.  In 2003 it was repealed and re-enacted as the Female Genital Mutilation Act, adding an offence of taking a child out of the country for the purposes of procuring FGM and extending the maximum penalty from 5 to 14 years.  Baroness Rendell observed,[7]

The practice is medically unnecessary, extremely painful and poses severe health risks, both at the time when the mutilation is carried out and in later life.  It has no possible physical advantages; is not called for in any religion and is not limited to any religious group.

As Hailsham had, she admitted,

It is unlikely that FGM was ever legal in this country.  Even before the Prohibition of Female Circumcision Act came into force, it could almost certainly have been prosecuted as an offence against the person.  The purpose of the 1985 Act was to remove any uncertainty about the legality of the practice and to make it clear that such a barbaric custom has no place in our society.

The Serious Crimes Act 2015 added a Schedule 2 to the Act which further enabled a court to make a variety of Female Genital Mutilation Protection Orders.  It is difficult to say what the effect of these Acts has been on a practice which had never been common and was already morally unacceptable and contrary to the law.

The 1861 Act had some holes which were closed by the Children and Young Persons Act 1933; this was designed to outlaw the “unnecessary suffering” which might be caused, albeit for benign reasons, by parents and others driven by religious belief.  Under Section 1, a person commits an offence against a child if he “wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement)”.

Although the term FGM describes a wide variety of practices across a wide range of cultures with consequences varying from the minor to traumatic disfigurement and maiming, the successful politicisation of FGM has resulted in the legal systems of western countries grouping all forms together as mutilation and forbidding them by law.  This is partly because all forms of cutting into a girl’s genitals without a medical diagnosis, and without her consent are already illegal under these countries’ legal codes.  Many people would agree that this is the correct approach, though there are some who argue that the more minor forms of cosmetic nicking and piercing should not be outlawed; again, most would agree that if a girl wants to do this to herself, she should wait until adulthood.

However, this is also analogous to the way in which feminism regards all forms of rape, or all forms of domestic violence as of equal severity, as manifestations of the patriarchy, and to be treated in the same way.  When, for example, Justice Minister Ken Clarke dared to suggest in May 2011 that some rapes were more serious than others – in accordance with Labour’s own sentencing guidelines – he provoked a feminist backlash, such as this from Lara Williams, writing in The Guardian,[8]

Through distinguishing “serious” and “less serious” rape, Clarke assumed a perverse gradient of suffering, a warped taxonomy of perceived victimisation.

There is no specific prohibition in English law against male circumcision, nor even a requirement that it should be carried out by medically qualified personnel in sterile conditions, and here as in many countries, such as the United States, where hairdressers and manicurists are regulated, it can be performed by anyone without training and without regulation.

The case of Re J concerned an application by an Islamic father for a specific issues order to enable the circumcision of his five-year-old son which was opposed by the non-Islamic mother.[9]  The procedure was to be performed under general anaesthetic in clinical conditions.  Mr Justice Wall observed that the circumcision of boys for religious reasons was lawful, on the grounds that it was demanded by Judaism and Islam and had become an accepted practice in England, that it could take place on agreement by the parents without consideration of the child’s best interests and, thirdly, that where the parents were in conflict, the decision was the court’s.  The Court had, therefore, to decide the issue according to the child’s welfare.

J suffered from none of the conditions for which circumcision is medically indicated; any other medical benefit was “highly contentious”, whereas there were clear and quantifiable risks associated with the procedure.  Wall concluded that circumcision was not in the child’s best interests, and was not to be carried out; a prohibited steps order was put in place.  The appeal was rejected by Lord Justice Thorpe,[10] who observed irresponsibly that cases involving older children after their parents had separated could be avoided if the children were circumcised as infants.

Neither court was willing to bring male circumcision within the ambit of offences against the person under Section 1 of the Children and Young Persons Act 1933; It was important to the courts that circumcision was not an offence and remained a procedure which could be performed by consent; the courts also carefully avoided mention of R v Adesanya, a case about ritual scarification mentioned below, despite apparently important similarities involving associated risks, the irrevocability of the procedures and the fact that an adult might regret what had been done to him as a child.

In 1995, the Law Commission concluded that male circumcision was lawful under English common law, relying on cases such as Brown,[11] Adesanya,[12] Coney,[13] Donovan[14] and A-G’s Reference (No 6 of 80).[15]  Only the first two mention male circumcision at all (we discuss them below); the others simply refer to exceptions to the 1861 legislation.  The Law Commission argued that the legality of religious circumcision should be placed beyond doubt,[16]

Male circumcision is lawful under English common law.  Male circumcision is insisted on by Islamic and Jewish law.  It is generally accepted that the removal of the foreskin of the penis has little, if any, effect on a man’s ability to enjoy sexual intercourse, and this act is not, therefore, regarded as a mutilation.  The traditional reason for male circumcision appears to have been a hygienic one… Since ritual circumcision is customarily carried out by someone who is not a qualified doctor, the practice of male circumcision would not be protected by a purely medical exemption.

Following Freedom of Information requests by the political party Justice for Men and Boys, neither the Home Office nor the Crown Prosecution Service has contradicted this view, but neither have they explained the absence of prosecutions.[17]

In 1996, the British Medical Association observed that the assumption religious circumcision was lawful had never been challenged in the courts; it recommended obtaining the written consent of both parents.[18]

Others argue that outlawing male circumcision would interfere with the Article 9 religious rights of Jewish and Muslim parents.  In a Guardian Article, Adam Wagner made this point, declaring that the comparison with FGM is “flawed”, though he didn’t offer an explanation.[19]  In a subsequent article, Wagner maintained that there was insufficient evidence for a ban “in relation to the costs and benefits of the practice”; there was insufficient evidence, he said, of harm.[20]  It should be noted that Wagner is an orthodox Jew.  Children have rights, however, independent of their parents, and they cannot be over-ridden by their parents’ rights.

In 2012, in Germany, the Cologne Regional Court ruled that religious male circumcision amounted to bodily injury.[21]  The Muslim doctor who was prosecuted for circumcising a 4-year-old was acquitted on the grounds that a scalpel was not a dangerous weapon in medically trained hands and the fact that he had mistaken the law was unavoidable as the law was unclear.

Germany’s 200,000 Jews and 4 million Muslims were outraged by the perceived affront to basic religious and human rights; Roman Catholic and Anglican church leaders also joined in the condemnation.  The German ambassador to Israel hastily reassured Jews that the ruling was local and did not apply nationally,[22] Angela Merkel’s government sought a way out of the embarrassment.[23]  Her spokesman, Steffan Seibert, made a statement that the performance of circumcision was a religious right.  In July, the Bundestag passed a non-binding resolution for clarifying legislation.  Eventually, a law was passed (by 434 votes to 100) permitting non-medical circumcision provided certain conditions were met.[24]

Campaigners in the UK fear that careless campaigning here could trigger similar legislation, which would be the worst possible outcome.

In Sweden, where circumcision is alien to the native population, a law was enacted in 2001 permitting circumcisions to be carried out only by trained medical personnel in clinical conditions and under anaesthetic.[25]  Predictably, Jews and Muslims protested, with the World Jewish Congress melodramatically calling it “the first legal restriction on Jewish religious practice in Europe since the Nazi era”.[26]  The requirement for anaesthetic caused particular ire because native Swedes are reluctant to assist in the procedure.  Five years later, a US report noted that 3,000 Muslim and 40 to 50 Jewish boys a year were still being circumcised, mostly by unqualified and uncertificated practitioners.[27]  Rather than make the practice unacceptable, the law had pushed it underground: another profoundly undesirable consequence of ill-considered legislation.

In Denmark, 87% of the population oppose the non-therapeutic circumcision of boys, while Denmark’s 29,000 doctors have declared the procedure unethical and incompatible with the Hippocratic oath to do no harm.[28]

Other ritualistic mutilations of children are outlawed by English law: there is no cultural or religious defence.  Thus, in R v Adesanya in 1983,[29] a Nigerian member of the Yoruba people, resident in Tottenham, North London, was convicted at the Central Criminal Court under the 1861 Act of assault occasioning actual bodily harm for having made incisions with a razor in the cheeks of her two sons, aged 14 and 9 respectively, in accordance with the customs of her tribe.  She received a suspended sentence.  The judge insisted there was a distinction between this assault and male circumcision on the grounds that the razor on the face posed a greater danger.[30]

In another case, R v Zaidi, a devout Muslim father had allowed his sons, aged 15 and 13, to flagellate themselves as part of a ritual; his appeal against the conviction failed,[31]

[11] … the Appellant had let his sons take part against the advice of the Mosque Elders.  Still he failed to understand the approach of the law or to accept any culpability.  The judge accepted that his behaviour was likely to have been affected by fervent religious belief and desire to participate in the ritual.  Albeit the boys were not forced to take part, the law protected them from themselves.

It is the medical benefits of circumcision, though contentious and at best limited, which are held by the law to counter the risks, which are viewed as minor.  It is thus considered necessary to lay to rest the myths of medical benefit and to make clearer the risks and irrevocable consequences.  The experiences of Germany and Sweden, however, suggest that the real obstacle – especially in a country with a growing Muslim population – is the fear of offending religious groups, and that the medical argument is just a smoke-screen.

The barrister James Chegwidden has argued that male circumcision does constitute a crime under existing UK law;[32] this is comparable to the position taken by Lord Hailsham in reference to female circumcision.  Male circumcision is manifestly contrary to the Offences Against the Person Act 1861 and the Children and Young Persons Act 1933; it is contrary to a strong common law principle which holds as inviolate a person’s bodily integrity, establishes it independently of his parent’s rights, and confirms that it cannot be overturned by religious considerations.

Against that is a series of cases in which judges have stated without argument or evidence that male circumcision is lawful.

The case of R v Brown[33] involved a group of sado-masochists who were convicted of “unlawful and malicious wounding” and “assault occasioning actual bodily harm”.  The Court concluded that even consensual sado-masochistic homosexual encounters which occasioned actual bodily harm to the victim still constituted assaults, and were thus contrary to s.47 of the 1861 Act, and constituted unlawful wounding, contrary to s.20 of that Act.  If an act is unlawful, it cannot be rendered lawful because the person to whom it is done consents: no one can give another license to commit a crime.

In a remark which was obiter dicta and possibly per incuriam, Lord Templeman then chose to exclude from the ambit of the Act tattooing, ear-piercing, violent sports and ritual circumcision.  This was merely his opinion, without legal justification, but it has helped to establish ritual circumcision since as a lawful procedure.  Tattooing a child under the age of 18 is illegal in the UK,[34] but cutting flesh from a baby’s penis without anaesthetic or medical competence is not specifically prohibited by the law and is wholly unregulated.

Re J[35] in 1999 established the legal position that circumcision is one of the decisions which requires the consent of both parents, and especially the mother’s where the father does not have parental responsibility.  Where the parents cannot agree, the matter must be decided by a court.  Circumcision was not medically indicated and free neither from pain nor from risk.

In SS (Malaysia) v Secretary of State for the Home Department,[36] Lord Justice Moore-Bick expressed his view that male circumcision—

is usually, though not invariably, carried out at a very young age when the child is unable to understand what is involved or to express any view about it.  Although invasive in nature and not commanding universal approval, it is regarded as an acceptable practice among communities of all kinds, provided it is carried out under appropriate conditions.

He repeated the commonplace dogma that “It cannot be compared to other cultural or religious practices, such as female genital mutilation, which involve a far more serious violation of the physical integrity of the body and an expression of subservience”, and referenced Baroness Hale’s observations in K v Secretary of State for the Home Department, which we discuss below.

In Re B and G,[37] a local authority sought to take two children (a boy and a girl) into care on the grounds that the girl had been illegally circumcised.  The LA failed to prove its case, and the evidence of the expert witness Dr Momoh MBE was dismissed as “remarkably shoddy” and “exceedingly unsatisfactory”. The irony was that the degree of FGM alleged in this case, had it been proved, would have been relatively minor and, on the scale of severity, some way below that of a typical male circumcision.  The boy would, in due course, have been circumcised, but there was no suggestion by the LA that this would have resulted in an application, and yet, had the far less traumatic injury to his sister been proved, he, too, would have been taken into care, despite the total absence of any risk to him.

Lord Justice Munby began his judgment by highlighting this profound legal anomaly, but then sought to rationalise it.  The question he had to answer was how FGM – in any form – transgressed the “significant harm” threshold established by Section 31 of the Children Act 1989 while male circumcision did not.  Munby went so far as to accept that “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.”  So far, so good.

To cross the threshold, however, significant harm must be accompanied by care of the child “not being what it would be reasonable to expect a parent to give”; this gave Munby his opportunity to establish clear water between the two practices.  There is no claimed medical justification or benefit for FGM, so it can never be part of reasonable parenting; MGM, however, is tolerated by society and the law and claimed by some people to confer medical benefits, so it can be consistent with reasonable parenting.

This, for Munby, established a “very clear distinction” between the two customs.

Munby is wrong, however, on both counts.  He believes that only the circumcision of boys is demanded by religion but, as we have seen, some Islamic traditions require it.  He believes, too, that only male circumcision is claimed to have medical benefits, but similar claims are made for female genital mutilation.  Dr Haamid al-Ghawaabi, for example, says,[38]

The secretions of the labia minora accumulate in uncircumcised women and turn rancid, so they develop an unpleasant odour which may lead to infections of the vagina or urethra.  I have seen many cases of sickness caused by the lack of circumcision.

Circumcision reduces excessive sensitivity of the clitoris which may cause it to increase in size to 3 centimeters when aroused, which is very annoying to the husband, especially at the time of intercourse.

Another benefit of circumcision is that it prevents stimulation of the clitoris which makes it grow large in such a manner that it causes pain.

Easily dismissed medieval twaddle, perhaps, but no more so than many of the claims made of male circumcision.  But watch what happens when researchers stumble over some genuine medical benefit of FGM.  Do they promote it, as they would for male circumcision, and use it to argue for more mutilations?  Inconveniently, two studies have shown that women who have undergone FGM have a significantly reduced risk of HIV infection than those who have not.[39], [40]  Embarrassed and apologetic, the researchers have sought to find an alternative explanation for their findings, concluding it is due to “irreducible confounding”.  Even if the correlation is true, it can never justify an abhorrent practice.

If it is not compatible with reasonable parenting to subject a girl to genital mutilation, however sincerely the parents believe it is demanded by their religion, or that it has therapeutic value, then male genital mutilation cannot be compatible with reasonable parenting either.  Munby cannot have it both ways, merely based on the sex of the victim.

The usual argument against making male circumcision illegal is the same as for abortion: that it would drive parents who insist on the procedure to use unregulated providers where complications and infections would be much more likely.  This argument is not used so often with regard to female circumcision, although it was raised in 1985 and quickly dismissed: making the practice socially unacceptable was more urgent.[41]

 

Feminism

The campaign for legal reform is further hampered by strong resistance from those who campaign against FGM and insist that the two practices must never be compared.  In the debates on the Female Genital Mutilation Bill in 2003, Baroness Rendell emphasised, “FGM is not in any way comparable to the accepted practice of male circumcision”;[42] Anne Clwyd said, “FGM is in no way like male circumcision.  It is much more harmful, and there is no medical justification for it”;[43] Baroness Findlay turned it into a specifically feminist issue, “This is a major issue for male education to alter men’s attitudes and to safeguard the lives of girls”.[44]  But it wasn’t men who were performing the ritual.

Any mention of MGM in the comments on articles about FGM in the Guardian newspaper will swiftly be removed by the moderator.  My purpose in presenting the comparatively low figures of FGM performed on UK soil is not to minimise the barbarity of this practice, nor the effects on the girls concerned, but to demonstrate the huge preoccupation with the issue of FGM compared with the utter disregard for the more than 12,000 boys we know suffer MGM every year and about whom we are probably in a better position actually to do something.  Feminists, who place such emphasis on their inalienable right to make decisions about their own bodies, have no respect for boys’ bodily integrity.

This position is difficult to comprehend until you realise that for feminists, female genital mutilation is a specifically feminist matter; this was expressed in 2005 by UNICEF,[45]

In the case of girls and women, the phenomenon is a manifestation of deep-rooted gender inequality that assigns them an inferior position in society and has profound physical and social consequences.  This is not the case for male circumcision, which may help to prevent the transmission of HIV/AIDS.

If male circumcision were a real problem it would contradict the feminist position, so it has to be dismissed as medically beneficial.  Baroness Hale, the former feminist academic Brenda Hoggett, quoted the UNICEF report with approval in the case Secretary of State for the Home Department v K,[46]

As can be seen, almost all FGM involves the removal of part or all of the clitoris, the main female sexual organ, equivalent in anatomy and physiology to the male penis.

This is not true either: though Hale wouldn’t necessarily know it, an analogy between the clitoris and foreskin is more apt.  It is characteristic of feminism to present female genital mutilation as the equivalent of castration, but this is true only of the most extreme forms.

The underlying purposes of doing this are to lessen the woman’s sexual desire, maintain her chastity and virginity before marriage and her fidelity within it, and possibly to increase male sexual pleasure.

For Hale, FGM is driven by the mythical patriarchy and male desire.

Women themselves are brought up to believe in this as strongly as men.  Sometimes, and not surprisingly, women themselves perform the operation as part of an elaborate initiation ceremony…  Patriarchal societies have often recruited women to be the instruments of the continued subjection of their sex.

In fact, FGM is usually performed by other women, and the explanation for it, as for male circumcision, is quite other than as Hale imagines.

The existence of male circumcision is a real problem for feminism and conflicts with their narrative; no opportunity is missed to trivialise it, or to present it as beneficial to the unfortunate victims.

Those who write about non-therapeutic male circumcision – as Margaret Somerville, founder and director of the McGill Center for Medicine, Ethics and Law in Montréal, did in 1990[47] – are condemned for detracting from the greater horror of female circumcision.  For these critics, it is necessary to see FGM as a barbaric practice, an expression of male power and domination, inflicting great pain and leading to life-long mutilation and complications, equivalent to castration or penectomy, while male circumcision is dismissed as a minor procedure which is hygienic and beneficial.  The feminist narrative is that FGM is carried out at the behest of men, to reduce women’s sexual pleasure, to enable men to control them.  The reality is that FGM is performed by women on women – usually by female members of the girl’s family – and this helps to explain the absence of successful prosecutions.

 

Conclusion

Outlawing FGM has been relatively straightforward: the practice had never taken root in the UK with very few procedures actually being performed here; most women who present with complications were circumcised by tribes such as the Igbo of Nigeria which are easy for campaigners to dismiss as barbarous.  It was a cultural rather than a religious practice and banning it has not offended any significant religious groups.  It had never moved out of the grimy, unhygienic conditions of the third world into the shiny, sterilised hospitals of the west.  It is straightforward to condemn because no one has ever plausibly claimed any medical benefits from it.  The campaign to ban it was an integral part of the feminist campaign to end violence against women and girls (VAWA) which receives enormous support from the government and funding from the tax-payer.  There is an uncomfortable sense that the legislation has been enabled not because FGM was an abuse of infant girls, but because it was a patriarchal crime against the sisterhood.

The move to put an end to male genital mutilation enjoys none of these advantages.  Male circumcision has long been established in the UK within an influential Jewish community, amongst many Roman Catholics and some Anglicans, and amongst the upper classes, including the Royal Family; it is respected as a traditional cultural practice and protected as a religious one.  It is likely that a substantial minority of the judiciary and of both houses of parliament have been circumcised and have circumcised their sons.  The myth of medical benefit has allowed circumcision to be performed in clinical conditions and provides its continuation even if the ritual practice were to be banned.  Feminism has ensured that while a woman’s or girl’s genitalia are sacrosanct and ever vulnerable to male abuse, a man’s or boy’s are the target of comedy and ridicule; their loss is of no consequence.

Male circumcision is child abuse.  It really is as simple as that.  It is sexual, physical and psychological abuse.  It is a breach of the child’s human rights, a violation of his body, discrimination on the grounds of his sex.  It is a breach of both national and international law.  It is horribly painful, permanently disfiguring and disabling.  It is the sacrifice by others to their god of that which it is not theirs to give.  It has no place in our society.

In a brief submitted to the Law Commission, solicitor Christopher Price wrote,[48]

Rejoicing, rightly, in our being a multi-cultural society does not… mean that we should be blind to practices, whatever their source and motive, which are themselves abusive and discriminatory of others, and which directly and inevitably diminish the freedoms, the human rights, the integrity and the dignity of others.

What Baroness Rendell said in the 2003 debate on the Female Genital Mutilation Bill applies no less to male genital mutilation,[49]

There is now much greater awareness of the practice of FGM and people are perhaps less inclined to believe that cultural beliefs are sacrosanct.  We must of course respect other cultures and traditions, but that does not mean accepting the unacceptable.  FGM is a brutal practice.  It cannot be supported on cultural, medical or other grounds.

[1] Jacobi, A. (1876). On Masturbation and Hysteria in Young Children. American Journal of Obstetrics, 8, 595.

[2] Philo of Alexandria. (c.25BC-c.50AD). De Circumcisione. In De Specialibus Legibus (Vol. 11, p. 210).

[3] Moses Maimonides. (1135-1204). The Guide of the Perplexed (Part III, Chapter 49).

[4] Øster, J. (1968, April). Further Fate of the Foreskin: Incidence of preputial adhesions, phimosis and smegma in Danish schoolboys. Arch Dis Child, 200-202.

[5] Female Genital Mutilation Bill. (2003, March 21). Hansard.

[6] Prohibition of Female Circumcision Bill. (1983, April 21). Hansard.

[7] Op. Cit., Female Genital Mutilation Bill. (2003, March 21).

[8] Williams, L. (2011, May 19). Ken Clarke’s comments: the view of an ex-Rape Crisis counsellor. The Guardian.

[9] Re J [1999] 2 FLR 678 (Family Court May 06, 1999).

[10] Re J [2000] 1 FCR 307 (Court of Appeal 2000).

[11] R v Brown [1994] 1 AC 212 (House of Lords March 11, 1993).

[12] R v Adesanya [1983] Crim LR 720 (Old Bailey 1983).

[13] R v Coney (1882) 8 QBD 534 (Queen’s Bench Division 1882).

[14] R v Donovan [1934] All ER Rep 207 (1934).

[15] Attourney-General’s Reference (No 6 of 1980) [1981] 2 All ER 1057 (1980).

[16] Law Commission. (1995). Consultation Paper no. 139, Consent in the Criminal Law. London: Her Majesty’s Stationery Office.

[17] Buchanan, M. (2016, March 29). It’s time to consign male genital mutilation to the dustbin of history. Retrieved from http://www.thebackbencher.co.uk.

[18] British Medical Association. (1996). Circumcision of male infants: guidance for doctors. London: British Medical Association.

[19] Wagner, A. (2011, June 15). Ban male circumcision? No, scientific evidence of harm is not strong enough. The Guardian.

[20] Wagner, A. (2011, June 15). Should male circumcision be banned? Retrieved from http://www.ukhumanrightsblog.com.

[21] Hans, B. (2012, June 27). Parents Vs. the State: Muslims and Jews Outraged by Circumcision Ruling. Der Spiegel.

[22] Michaelis, A. (2012, September 09). Circumcision in Germany. Jerusalem Post.

[23] The World from Berlin: Circumcision Ruling Is ‘a Shameful Farce for Germany’. (2012, July 13). Der Spiegel.

[24] German parliament passes law keeping circumcision legal. (2012, December 12). The Times of Israel.

[25] Circumcision law arouses protests. (2001, October 01). Swedish Daily News.

[26] Reuters. (2001, June 07). Jews Protest Swedish Circumcision Decision. Reuters.

[27] US Department of State. (2004). Annual Report on International Religious Freedom 2004. Washington DC.

[28] Op. Cit. Frisch. (2017).

[29] R v Adesanya, [1983] Crim LR 720 (Old Bailey 1983).

[30] Dundes Rentein, A. (2004). The Cultural Defense. Oxford: Oxford University Press.

[31] R v Zaidi [2008] EWCA Crim 2847 (Court of Appeal November 19, 2008).

[32] Chegwidden, J. (2013, September 17). The Law on Circumcision. Genital Integrity Conference. Keele.

[33] R v Brown [1994] 1 AC 212 (House of Lords March 11, 1993).

[34] The Tattooing of Minors Act 1969

[35] Re J (A Child) [1999] EWCA Civ 3022 (Court of Appeal November 25, 1999).

[36] SS (Malaysia) v Secretary of State for the Home Department, [2013] EWCA Civ 888 (Court of Appeal July 18, 2013).

[37] Re B and G (Children) (No2) [2015] EWFC 3 (Family Court 2015).

[38] Islam Question and Answer. (2005, September 23). Medical Benefits of Female Circumcision. Retrieved from https://islamqa.info.

[39] Kanki, P., M’Boup, S., Marlink, R., Travers, K., Hsieh, C., Gueye, A., . . . Leisenring, W. (1992). Prevalence and risk determinants of human immunodeficiency virus type 2 (HIV-2) and human immunodeficiency virus type 1 (HIV-1) in west African female prostitutes. Journal of Epidemiology, 136(7), 895-907.

[40] Stallings, R., & Karugendo, E. (2005, July). Female circumcision and HIV infection in Tanzania: for better or for worse? Third International AIDS Society Conference on HIV Pathogenesis and Treatment. Rio de Janeiro.

[41] Prohibition of Female Circumcision Bill. (1985, June 03). Hansard.

[42] Female Genital Mutilation Bill. (2003, September 12). Hansard.

[43] Op. Cit., Female Genital Mutilation Bill. (2003, March 21).

[44] Op. Cit., Female Genital Mutilation Bill. (2003, September 12).

[45] Lewnes, A. (2005). Changing a Harmful Social Convention: Female Genital Mutilation/Cutting. Florence: UNICEF Innocenti Research Centre.

[46] Secretary of State for the Home Department v K [2006] UKHL 46 (House of Lords October 18, 2006).

[47] Somerville, M. (1990). The Ethical Canary: Science, society and the human spirit. Viking/Allen Lane.

[48] Price, C. (1996, December). Male Circumcsision: a Legal Affront, Brief submitted to the Law Commission of England and Wales. December 1996. Retrieved from http://www.cirp.org.

[49] Op. Cit., Female Genital Mutilation Bill. (2003, September 12).