Why Family Law Treats Female Genital Mutilation and Circumcision Differently: An Explanation

Abstract

Abstract Family law in England and Wales draws a fundamental and categoric distinction between female genital mutilation (FGM) and male circumcision (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.1 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 we consider some core underlying features of family law in our contemporary democratic society and that it is only with those features in mind that the different treatment can be explained and viewed as acceptable.