Why does family law treat female genital mutilation and circumcision differently?

Family law in England and Wales draws a fundamental distinction between female genital mutilation (‘FGM’) and circumcision. The former is a criminal abuse of human rights which, for the purposes of section 31 of the Children Act 1989, can never fall within the ambit of reasonable parenting. The latter is, in principle, reasonable and is therefore not in itself a basis upon which the state can seek to intervene in family life. It will be argued that the reasons given for this distinction in the authorities to date (reasons based on precedent, culture/religion and health/medical issues) are problematic and are not ultimately capable of explaining the distinction satisfactorily. Nevertheless, it will be further argued that a distinction can be properly justified but only when consideration is given to the fundamental nature of family law in our contemporary democratic society and that it is only with that nature in mind that the different treatment can be explained and viewed as acceptable. In terms of contribution to the field, whilst the literature includes examples of challenges to the different treatment of the practices, it is suggested that there is a lack of sustained and detailed consideration of the reasons given for that in the specific context of family law - with there being a particular absence of focus on the fundamental nature of family law: what that may tell us about the appropriateness or otherwise of the distinction drawn between the practices and why family law might be falling short of its own expectations as to what constitutes sound reasoning.

Grantor dc:publisher

Oxford Brookes University

Year dc:date

2022

Author dc:creator

• Brown, Nicholas

Contributors dc:contributor

• Edge, Peter
• Gordon-Bouvier, Ellen

Statement dc:rights

• All rights reserved

Language dc:language

en

DOI dc:identifier

https://doi.org/10.24384/492z-2h41

OAI identifier oai:identifier

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