The Children Act – Ian McEwan: A review

Please note – this review necessarily reveals some aspects of the plot of the book.

This article was first published by Family Law Week on 25 September 2014

In his latest novel, Ian McEwan turns his pen to another British institution, the High Court. He immerses himself in the world of the family lawyer in a novel, which is closely attuned to today’s legal, political and religious climates.

A cynic may say that the Ashya King case could hardly have come at a better time for McEwan. Those with a deeper understanding of the law, however, will be more hesitant to draw parallels.

Fiona Maye, 59, is a highly-accomplished lawyer at the pinnacle of her career as a High Court judge, admired and respected by her peers for her “crisp prose” and “almost ironic, almost warm” judgments. McEwan leads us “behind the scenes” of her life as she faces a series of ethical, and personal, dilemmas.

For family lawyers in the early stages of our careers, our impression of those at the top of the profession is limited to the judgments we read and our brief appearances in court. Peeping behind the veil of the age-old institution that is the High Court is, for a junior family lawyer at least, a slightly voyeuristic pleasure.

Fiona’s vibrant professional success is juxtaposed with her stale, stagnant home life. Fiona and her academic husband, Jack, should be thinking about reaping the benefits of their own respective careers, enjoying life together after decades of hard work. Instead, Fiona’s world is rapidly crumbling around her.  She regrets her own childlessness, from which the delights of nephews and nieces provide only a momentary distraction. Her relationship with Jack is more like that of siblings than of lovers. Jack’s announcement that he intends to have “one big affair” with a young statistician leaves Fiona devastated and isolated.

Her husband’s timing could not be worse, although arguably there is never a good time for a family lawyer to discuss their own relationship.  Fiona’s private life is spun into disarray, leaving her unable to focus on writing a judgment determining the schooling of two Jewish schoolgirls. McEwan’s inspiration for this case is undeniably the judgment of Munby LJ (as he then was) in Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233). Ultimately, Fiona has to put her feelings and her relationship to one side and focus on her duties to the law.

McEwan touches acutely on the complex interplay between career and motherhood.  Fiona, whom McEwan describes as belonging to the law “as some women had once been brides of Christ”, worries that she has become “selfish, crabbish and dryly ambitious”. Fiona’s professional success and childless regret could suggest that to succeed in one, you must sacrifice the other (which looking at our profession as a whole, we know not to be true).  McEwan is sympathetic to the remorse Fiona feels at this lost opportunity.

As her marriage starts to fall apart, Fiona is called to deal with an emergency application concerning the treatment of Adam, aged 17 (three months away from his eighteenth birthday), a leukaemia patient and Jehovah’s Witness, who will die if he is not given life-saving treatment involving a blood transfusion. Adam’s devoutly religious parents reject the treatment and the case comes before Fiona’s court.

Before making her decision, Fiona chooses to visit Adam in hospital. He is intelligent, writing poetry, learning to play the violin, and yet naïve, with a “fresh, excitable innocence”. His view of death is limited and romanticised by his parents’ influence and their religious belief.  He is weighed down by the pressure of fulfilling his parents’ expectations, like so many of his age. Yet Adam’s situation is in stark contrast to the seemingly trivial dilemmas faced by his teenage peers.  Meeting Fiona, however, seems to change Adam’s outlook, and he appears to develop independent thought about the value of his own life. The two strike up an unlikely friendship, united by a love of poetry and music.

Fiona rules in favour of treatment and so Adam is to live. But whereas in most cases, the judge’s involvement will come to an end after conclusion of their judgment, the parties exiting the courtroom to face the fall-out, the story continues as Adam writes to Fiona. The first letter, which Fiona is reluctant to absorb, is soon followed by more. Adam rejects religion and his parents but, having been resigned to death for so long, he is lost at the prospect of life. He turns to Fiona, his neediness increasingly verging on obsession, which Fiona struggles to handle.

The novel portrays the interplay between the secular and the religious in the most crucial, life-changing of issues and how (in our jurisdiction at least), the law should, and will, ultimately prevail.

McEwan’s explanation of Fiona’s decision-making shows a clear understanding of the workings of the Children Act 1989, with which McEwan himself became so familiar during his own children proceedings. He succinctly demonstrates how in reaching her decision, Fiona must give consideration to Adam’s age, whilst showing due respect to his faith, the dignity of the individual and the right to refuse treatment. This decision is especially difficult given how close Adam is to his eighteenth birthday but ultimately he is a minor and so, in the eyes of the law, unable to make the decision for himself.

The novel raises interesting questions about the conflict between religion and the law, Gillick competency and those tricky years when a teenager, not quite a child, but not yet an adult, is treated as a minor.  In the background, we see the workings of a highly intelligent, professional, childless couple and their differing regrets and desires.

McEwan’s inspiration, he has explained in an essay for The Guardian, was a dinner with a handful of judges, where he found himself “resisting the urge to take notes” and observed how easily those present could be mistaken for a group of novelists discussing each other’s work.  He later reads a judgment of Sir Alan Ward, whose wife acted for McEwan in his divorce, and admires it as “clean, precise, delicious”.  The more he researched, he says, the more the parallels between the professions continued to strike him.

The book is littered with references to high profile children cases from recent years. Fiona presides over a case involving conjoined twins, and one cannot help but draw comparisons with Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civil 254, heard by Ward LJ (as he then was) in the Court of Appeal with Lord Justices Brooke and Walker.  There are also striking similarities to Re G and a link to the Sally Clark case (R v Sally Clark [2003] EWCA Crim 1020).

McEwan’s writing is, like the very best judgments, well-researched, eloquent and to the point. He understands the workings of the family court, the internal conflict faced by family lawyers, the thought process and legal arguments behind a judgment, and, ultimately, the fall-out from the decision of the court.  He sympathises with the difficult position judges find themselves in and notes how the choices “are often limited to the lesser harm rather than the greater good”.

“The law”, he writes, “was at its worst not an ass but a snake, a poisonous snake”.

This book has been received by the legal community with much aplomb, although with somewhat less enthusiasm from a handful of critics outside of the legal sphere. It is a must-read for any family lawyer with a passion for literature.