3 UF 133/13
Oberlandesgericht Hamm / Higher Regional Court of Hamm, family branch, appellate division
3 UF 133/13
30 August 2013
§ 1631 d BGB (German Civil Code; circumcision of boys)
This case was brought by a father to the family court of first instance to stop the impending circumcision of his six-year-old son. The boy’s mother, who was of Kenyan background and who had custody rights over the child since the couple’s separation, had been planning to circumcise the child in accordance with the cultural rites of her home country. The family court in the first instance granted relief to the father and revoked the mother’s custody in terms of the son’s health regime. The mother then filed an appeal to the family court appellate division.
Issue and resolution:
Male circumcision; legality of harmful traditional practices imposed by parents or guardians on children. The court ruled that children have to be appropriately informed about circumcision before it is carried out.
The mother, as the sole custodian in this case, generally holds the inherent right to decide whether to have circumcision performed on the child, based on a bill approved by the German parliament on 12 December 2012 which kept male infant circumcision legal in Germany. Under this law, parents have the right to authorise the circumcision of their son by specially qualified members of religious communities in the first six months of a boy's life, after which it must be performed by a physician. But the court held that this parental right only applies as long as the child cannot make that decision himself. The court ruled that parents and doctors are obliged to inform the child "in a manner appropriate to his age and development" about the procedure and be mindful of his wishes. In the case of the 6-year-old, this did not occur. Both parents must also be informed about the procedure ahead of time. As Germany was the family’s primary place of residence, visits to Kenya only took place on occasion and in addition the child had been baptised protestant. Moreover, they concluded that the procedure could cause psychological damage to the child, since the mother was not going to be able to accompany her son to the circumcision. The court therefore dismissed the mother’s appeal and ultimately found the mother's justification for the procedure to be unsatisfactory.
Circumcision has become a highly charged subject in Germany since May 2012, when a criminal court in Cologne decided that religious circumcision of boys constituted "bodily harm." Read CRIN’s case summary.
In an editorial in the German daily ‘Süddeutsche Zeitung’, respected political and legal commentator Heribert Prantl praised the decision by the Higher Regional Court of Hamm because it "follows the wording and logic of the law: The older the child is who is to be circumcised, the more his own will should be determined and considered. It shows that the central idea of the overall new family law is and continues to be child's well-being."
Link to Full Judgment:
http://www.west-info.eu/circumcision-continues-to-divide-german-opinion/116-sorgerecht_beschneidung/ (press release by the court with case summary)
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.