Reason and Paradox in Medical and Family Law: Shaping Children’s Bodies

Oxford University Press
Publication Type:
Journal Article
Medical Law Review, 2017, 25 (4), pp. 604 - 627
Issue Date:
Full metadata record
Legal outcomes often depend on the adjudication of what may appear to be straightforward distinctions. In this article, we consider two such distinctions that appear in medical and family law deliberations: the distinction between religion and culture and between therapeutic and non-therapeutic. These distinctions can impact what constitutes ‘reasonable parenting’ or a child’s ‘best interests’ and thus the limitations that may be placed on parental actions. Such distinctions are often imagined to be asocial facts, there for the judge to discover. We challenge this view, however, by examining the controversial case of B and G [2015]. In this case, Sir James Munby stated that the cutting of both male and female children’s genitals for non-therapeutic reasons constituted ‘significant harm’ for the purposes of the Children Act 1989. He went on to conclude, however, that while it can never be reasonable parenting to inflict any form of non-therapeutic genital cutting on a female child, such cutting on male children was currently tolerated. We argue that the distinctions between religion/culture and therapeutic/non-therapeutic upon which Munby LJ relied in making this judgement cannot in fact ground categorically differential legal treatment of female and male children. We analyse these distinctions from a systems theoretical perspective—specifically with reference to local paradoxes—to call into question the current legal position. Our analysis suggests that conventional distinctions drawn between religion/culture and the therapeutic/non-therapeutic in other legal contexts require much greater scrutiny than they are usually afforded.
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