It is rare for this Journal to carry a review of a novel. It is nevertheless also rare for a novel to be named after a piece of legislation, or for one to open with a quotation from an Act's first section. This can be said of Ian McEwan's latest offering, albeit that he slightly mislabels section 1(1) of the Children Act 1989, which holds inter alia that, when deciding a question concerning a child's upbringing, the child's welfare shall be the “paramount” consideration.
The novel revolves around Mrs. Justice Fiona Maye, and her efforts to manage her extensive caseload in the Family Division of the High Court while her marriage appears to be collapsing following her husband's request for permission to have an affair. McEwan clearly put impressive effort into researching the book, with advice from the distinguished former Lord Justice of Appeal and Family Division judge Sir Alan Ward amongst others, and there is something of an anxiety present in the book to prove the depth of his research through the inclusion of detail. That said, the narrative is successful (in spite, or perhaps because, of McEwan's apparent penchant for writing incomplete sentences), and ultimately intertwines Fiona's personal and professional lives in a surprising manner.
Several of Fiona's cases on which McEwan focuses have a religious element. One is recognisable as a version of Re G (Children) (Religious Upbringing: Education) [2012] EWCA Civ 1233, [2013] 1 F.L.R. 677, concerning whether the fictional Bernstein sisters, born into the Cheridi Jewish community before their parents separated, should continue to attend the mixed-sex orthodox Jewish school to which their mother was sending them, or be educated in a manner fully consistent with conservative Cheridi traditions preferred by their father, which would involve single-sex schooling inter alia. McEwan produces a highly readable account of the proceedings and the judgment, ultimately having Fiona conclude in a manner analogous to the Court of Appeal's decision in Re G itself.
McEwan also includes amongst Fiona's cases a fictionalised account of Re A (Children) (Conjoined Twins: Medical Treatment) (No. 1) [2001] Fam. 147. This well-known case concerned whether conjoined (or “Siamese”, as McEwan persists in calling them) twins should be separated, killing one of them but giving the other a very good chance of long-term survival, or left unseparated such that they would both die within months. Again, Fiona mirrors the result in the real case by deciding that the twins should be separated in spite of the inevitable death of one of them, albeit that she is seriously troubled by the outcome. Her rather stark reasoning (perhaps too stark), approved by the fictional Court of Appeal, is that the weaker twin simply has “no interests” (p. 27). McEwan describes it as a “novel formulation” (p. 27) in the context of his story, and it might be detectable in Ward L.J.'s real remark that “[i]n terms of [the weaker twin's] best health interests, there are none” (Re A, p. 184, emphasis added). That said, it is significant that Ward L.J. also specifically held that the first instance judge in Re A “was wrong to find that [the weaker twin's] life would be worth nothing to her” since that life, “desperate as it is, still has its own ineliminable value and dignity” (Re A, p. 188). In the fictionalised case, as in Re A, both twins are self-evidently the subject of an application that is intended to ascertain each of their best interests, even if a balancing exercise must ultimately be carried out, and the whole novel is premised on the “paramountcy” of those interests.
There are some clearer oddities in the novel's legal descriptions. For example, McEwan refers to an application for a “prohibitive-steps order” by a man who feared violence at the hands of his ex-wife's boyfriend (p. 54). The order with the closest name, a prohibited steps order, is found in the Children Act (s. 8) and is not available between adults. The most appropriate application is therefore probably one for an injunction under the Protection from Harassment Act 1997 (s. 3). On the whole, McEwan nevertheless does a fine job in bringing Fiona's cases to life.
McEwan does not confine himself to discussing cases from the Family Division. He vents what is presumably his own frustration about the wrongful conviction because of flawed statistical evidence of Sally Clark for the murder of her children, who were ultimately found to have been victims of Sudden Infant Death Syndrome (R. v Clark [2003] EWCA Crim 1020, [2003] 2 F.C.R. 447). He even wades into the debate about joint enterprise in criminal law (see e.g. House of Commons Justice Committee, Joint Enterprise, Eleventh Report of Session 2010–12 (2012)) via a rant undertaken by one of Fiona's barrister friends.
The case at the centre of the novel, however, involves Adam Henry, a 17-year-old Jehovah's Witness who urgently requires treatment necessitating a blood transfusion to save him from an agonising and likely death caused by leukaemia. Blood transfusion is widely regarded within the Jehovah's Witness community as being forbidden by the tenets of the faith, and the hospital treating Adam seeks Fiona's permission to provide the treatment in spite of strong objections from both Adam and his parents. The case is clearly modelled on Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 F.L.R. 386, which is cited in Fiona's fairly convincing fictionalised judgment. While Re E was about wardship and pre-dated the 1989 Act, the mechanism of applying for a specific issue order in order to continue treatment, as the hospital does in Adam's case, was recognised as legitimate in the relatively similar case of Re R (A Minor) (Blood Transfusion) [1993] 2 F.L.R. 757. As with the teenager in Re E, there are concerns about the sheltered nature of Adam's upbringing, albeit that E was described as “a boy of ordinary average intelligence” (Re E, p. 387) and Fiona describes Adam as possessing “exceptional insight for a seventeen-year-old” (p. 121).
There is a significant difference between Adam's case and Re E that may have caused McEwan problems in adapting the real case. E was 15 as compared to Adam's 17 – a difference that McEwan might have considered necessary for reasons relating to the subsequent plot. As McEwan acknowledges, Adam would in general have the benefit of section 8 of the Family Law Reform Act 1969, which provides that consent given by a minor who has attained the age of 16 to medical treatment “shall be as effective as it would be if he were” 18. E, by contrast, had to demonstrate “Gillick competence” to put himself in an equivalent position (Gillick v West Norfolk and Wisbech AHA [1986] A.C. 112). Admittedly, the difference is not as great as it first appears. It has been held, as McEwan again clearly understands, that neither a Gillick-competent person under 16 (Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam. 11 nor (rather more controversially, following Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam. 64), a person over 16 protected by section 8 of the 1969 Act can successfully veto treatment, even if the court should have a “predilection” to give effect to the minor's wishes in the latter circumstances in the view of Balcombe L.J. (Re W, p. 89). McEwan could therefore have spent less time on whether Adam was Gillick-competent, a matter of limited relevance, but that is not a serious criticism, since even the real judgments in Re W consider Gillick at length.
Having taken the unusual step of visiting Adam personally in the hospital (as Ward J. did for E) and in spite of being mesmerised by his intelligence and insight, Fiona orders that the treatment would be lawful and he receives it (as happened to E). The meeting between Fiona and Adam has further and intriguing personal consequences for both of them, which the present review will not reveal. It should nevertheless be noted that Fiona describes her judicial decision in a very odd manner. She holds that “the agreement to blood transfusion of … the parents, and the agreement … of … A[dam] himself, are set aside” (pp. 123–24, emphasis added), whereas it is the prima facie need for agreement, or the objection, that is really being set aside.
It is perhaps inevitable that a review in a law journal should contain some minor quibbles about a novel such as this. These should certainly not, however, be allowed to detract from The Children Act's overall quality. It is not, after all, a law textbook. While his approach to religious faith at times borders on contemptuous, McEwan successfully captures the emotional and other human factors behind often poignant family cases, including the effects that can be experienced by the judges deciding them. This compelling short novel manages to be informative for the general reader, useful to the intending law student in helping to illuminate the true range of judicial endeavour, and entertaining for the lawyer with knowledge of the surrounding issues.
