It’s a controversial topic in many Western societies including in Australia. But circumcision became the subject of debate in a recent UK family law case. So we thought it might be interesting to look at the situation in Australia regarding circumcision and family law.
If you’re considering the issue of your baby son’s circumcision and are separated, hopefully you and your ex are on the same page. But if not, who has the last say?
Parental responsibility
Medical decisions are normally dealt with under the parental responsibility provisions of family law. If the parents have equal shared parental responsibility, it’s expected they are able to come to a joint decision about important parenting medical decisions, which include circumcision. If parents are unable to agree and are separated, they might make application through the family courts for either an Order that the parent has sole parental responsibility (or at least in relation to the decision about circumcision) or asking the Judge to make a decision about the matter. A judge will then decide how parental responsibility should be apportioned. Sometimes, a judge will confer sole parental responsibility in situations where parents have shown they are unable to cooperate effectively and reach joint decisions.
Irreversible medical decisions
Courts struggle with ethical issues around ordering irreversible medical treatments to be allowed but they keep the “best interests of the child” in mind. In order to determine risks and benefits, Courts tend to defer to scientific expert opinion and/or governmental directives and guidelines. Also, if there is a medical reason that necessitates the circumcision and there is medical evidence recommending the child undergo circumcision, then the Judge will also take this into consideration in determining the best interests of the child.
A few Australian decisions have been handed down in recent years regarding irreversible medical issues. For instance, when a court ordered chemotherapy for a child with cancer against the mother’s wishes. Or, where decisions involve transgender children, for example. Vaccination is another medical issue sometimes litigated which is also an irreversible procedure. In those cases the courts have relied on public health guidelines about the risks and benefits of vaccination. Similarly, there are Australian government health guidelines relating to risks and benefits of circumcision. So it’s quite likely that cases involving circumcision and family law here in Australia would similarly consider the relevant public health directives.
Circumcision decisions
In the UK case reported in Family Law Week, an application was being made in relation to a 21 month old boy who was in interim care of the state. His parents wanted to have the boy circumcised for religious reasons but the child’s guardian and the local authority opposed this. The rationale was that the circumcision is something that can be done by the child’s later informed choice.
Here in Australia, a conflict over circumcision is equally rare. In an instance in 2014, a court included an order that “neither the mother nor the father shall cause the child to be circumcised unless and until the said child personally expresses his wish to be circumcised, which wish is to be confirmed in writing by an agreed child psychologist, or failing agreement, a child psychologist nominated by the Chair of the Psychology Board of Australia.”
In another case, this time involving older children (11, 12 and 14), saw a father’s appeal against various parenting orders dismissed. As part of that matter, the court noted that:
“The father was charged with, but acquitted of, grievous bodily harm in respect of his two sons from a previous relationship. Those charges arose out of an assertion that the father had arranged for their circumcision without the consent of, and contrary to the wishes of, their mother. The mother in these proceedings is concerned that the same will occur in respect of their two sons. In fact, in the father’s Notice of Appeal he seeks orders that “[t]he court make an order that my two sons be circumsised [sic]”.
It’s interesting that the father’s prior behaviour in having his other sons circumcised had led to criminal charges of grievous bodily harm. It may have been that he was acquitted because it is only female genital mutilation which is mentioned in our Criminal Code. Whether or not infant boy circumcision should be outlawed is still a subject of much debate in our society but so far the laws have not yet made infant boy circumcision a crime. As such, any family court decisions around circumcision will likely continue to consider the current, scientific medical arguments about risks and benefits of the “unnecessary” surgical intervention.
If you would like any assistance with any of these kinds of family law issues, please don’t hesitate to contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
