L And B (Children : Specific Issues : temporary Leave To Remove From the Jurisdiction; Circumcision)

Applications concerning international travel and non-therapeutic circumcision must be determined by the children’s welfare as the paramount consideration. For temporary removal to a non-Hague Convention country, the court must consider the risk of breach, the consequences of breach and the effectiveness of available safeguards. It must be positively satisfied that the benefits outweigh the risks and should err on the side of caution where doubt remains.

Non-therapeutic circumcision is not automatically contrary to a child’s welfare. However, where it is irreversible, medically unnecessary, opposed by the primary carer and sought for religious reasons, there must be clear benefits outweighing the physical, psychological and family-conflict risks. Where the children are too young to decide, deferral until they are competent may be preferable.

The father applied for orders concerning the care of his two sons, permission to remove them temporarily from England and Wales for foreign travel, and permission for their non-therapeutic circumcision in accordance with his Muslim faith. The mother opposed travel because of an established risk that the children might be retained in Algeria, a non-Hague Convention country. She opposed circumcision until the children were mature enough to decide for themselves.

The children had previously been the subject of findings concerning domestic abuse and a risk of abduction. They had developed a stable pattern of contact with the father, while the mother remained their primary carer. The central issues were whether safeguards could adequately protect the children during foreign travel, whether circumcision was presently in their best interests, and whether their contact arrangements should change.

1. International travel. The court applied the welfare checklist in section 1(3) of the Children Act 1989 and the guidance in Re A (Prohibited Steps Order) [2014] 1 FLR 643, including the three related elements: the magnitude of the risk of breach, the magnitude of the consequences if breach occurred, and the security achievable through safeguards. The consequences of wrongful retention would be catastrophic for these young children, whose mother was their primary carer.
2. The risk of retention in Algeria remained, although the risk of abduction itself was slight. The proposed bond, undertakings, family oaths and possible registration of an agreement in Algeria were not real and tangible safeguards. There was no adequate mechanism for enforcing English orders or securing the children’s return. The court was not positively satisfied that the advantages of visiting Algeria outweighed the risks and therefore refused permission.
3. Travel to France or another Hague Convention country was also refused. France might be used as a springboard for onward travel to Algeria, where the Convention would provide no effective remedy. The prohibited steps order preventing international travel therefore remained in force.
4. Circumcision. The court applied the welfare checklist and section 1(5) of the Children Act 1989. It accepted the religious importance of circumcision to the father and the children’s Muslim heritage, but weighed those matters against the procedure’s irreversibility, medical risks, absence of medical necessity, the mother’s rational opposition and the emotional pressure which authorisation would create for the children.
5. Following Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678 and the appellate decision reported as Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, it was a strong thing to impose medically unnecessary surgery on a primary carer who opposed it. The court concluded under section 1(5) that making no order was better than authorising circumcision at that stage. The decision deferred the issue until each child was competent to choose, without determining that the children should remain uncircumcised.
6. Contact. The father’s contact was increased by one midweek overnight stay in alternate weeks, combined with an activity-based period which would not reduce the children’s time with their half-sister. The remaining arrangements continued, and no further prescriptive increase was ordered.

First-instance determination of applications concerning child arrangements, temporary removal from the jurisdiction and circumcision. The judgment records earlier fact-finding and review orders but no appeal from them.