Background Various legal aspects of non-therapeutic circumcision have been considered by the courts in England and Wales. For example, the necessity to obtain dual parental consent for the surgery; and whether a boy's best interests would be better served by delaying surgery until he was competent to consent. But a court has yet to be asked whether non-therapeutic circumcision is lawful, particularly with regard to human rights legislation. Until this happens, we can only speculate on the possible response.
Methods Better to inform this speculation, we have studied a number of key cases from the common law, to explore the court's attitude to ritual circumcision of the incompetent child. Existing statute is used to come to a general conclusion in relation to the consistency of ritual circumcision and a child's best interests. Comparisons are made with mainland Europe and Scandinavia where legislation has been enacted regarding non-therapeutic circumcision. A balancing exercise is performed to derive a speculative response.
Results We are unable to find evidence that an English court has considered the child's best interests, when performing a balancing exercise to determine the specific question as to whether circumcision is lawful.
Conclusions Non-therapeutic circumcision is currently lawful, since it has never been prohibited by law. But our studies indicate that a court, if asked this specific question, might find that non therapeutic circumcision on an incompetent child would be inconsistent with human rights legislation, and with the latter's effect on the balancing exercise, when determining a child's best interests. We propose options for statutory measures to clarify this anomaly.
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