The Children Act Dossier

Francisco Estrada

The Children Act Ian McEwan: a review

Sarah E Green, solicitor at TLT, reviews Ian McEwans latest
novel which concerns a High Court judge in the Family Division

Sarah E Green, solicitor, TLT

Please note this review necessarily reveals some aspects of the plot of
the book.
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 ageold 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
1

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 nave,
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
2

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
3

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.
25/9/14

http://www.familylawweek.co.uk/site.aspx?i=ed132954

Ian McEwan

The Children Act by Ian McEwan

review the intricate workings of
institutionalised power
A high court judge immersed in her work finds her world
disrupted by a life-or-death decision
Novelists spend all day making everything up, so it's no wonder

that from time to time they are stricken with reality-envy. Other
forms of authority, in the real world, seem so much more
dignified and consequential than writing fiction. The great
institutionalised authorities fascinate Ian McEwan:
in Saturday his protagonist belongs to the upper echelons of the
medical profession, in Solar he is a research scientist, in Sweet
Tooth she is an agent for MI5, and in his new novel The Children
Act Fiona Maye is a high court judge. There ought to be a book
about politics sooner or later or perhaps finance. You can hear
in the tone of McEwan's "Acknowledgments" his warm
admiration for the experts he has consulted, and his handling of
the technical detail in each of these worlds always seems
intelligent: quick to pick up on the essentials and the principles
of what's at stake, the texture of the insider's knowhow. Whether
or not it works for actual insiders what did climate change
scientists think ofSolar, or spies of Sweet Tooth? probably isn't
crucial, because insiders sometimes can't see the wood for the
trees. McEwan's bold ambition is to describe the wood: to have
his novels address what novels often shy away from the
intricate workings of institutionalised power.
His excited interest in Fiona Maye's work leaps off the page: "The
family division teemed with strange differences, special
pleading, intimate half-truths, exotic accusation fine-grained
particularities of circumstance needed to be assimilated at
speed." The novel begins one evening when Fiona's absorption
in her career is invaded by a crisis in her private life. Her
husband Jack, a professor in ancient history who has been her
faithful and loving companion, announces that he wants to
5

embark on an affair he has a 28-year-old statistician lined up

ready. Fiona and Jack are in their late 50s and childless; he
complains that their relationship is too "cosy and sweet", they
are more like siblings than lovers, and haven't had sex for
"seven weeks and a day". He has no desire to deceive Fiona, let
alone leave her, but wants one "big passionate affair" before he
drops dead. "Ecstasy, almost blacking out with the thrill of it?
Remember that?" Fiona is humiliated and outraged; when he
seems determined to go ahead she sends him packing, then
changes the locks on the door of their flat in Gray's Inn Square.
There's humiliation in store for Jack too, and he's back home in a
few days, having realised his mistake; but the tranquillity of their
marriage has been shattered, and Fiona's steady confidence in
herself and her work overturned.
The novel is written in the third person, but it's all narrated from
inside Fiona's awareness and much of her thinking, inevitably,
is about the facts of her legal work and the issues and
arguments arising from it. Usually a realist novelist and the
book does in its beginnings feel like realism, more or less
would sample just enough fragments of that legal detail to
flavour the narrative with authenticity, while reserving the core
of his attention for the character's emotional life and
relationships. The novel form is notoriously better suited to
conveying the subjective flow of experience, less good at ideas
or abstract argument. McEwan overrides that predisposition
almost heroically. Throughout the book, as part of the contents
of Fiona's awareness, he sets out a succession of particular
cases from the family division in all their fascinating detail, along
with the legal precedents and the issues they raise. And there
are other digressions too: into a scheme for salt marshes
as a defence against coastal flooding, or a geologist's
apocalyptic vision of the future, or a disenchanted lawyer's
account of a miscarriage of justice.
This determination, to import inside the story some of the heft of
complicated facts and sustained argument, ought to be worth
the effort. There aren't enough contemporary novels that take
work seriously, or take argument seriously. But the digressions
make the flow of life in The Children Act feel oddly halting, and,
6

although the plotting is intricate, there's nothing in the writing of

Fiona's private life that is as interesting as the legal arguments.
Not unpredictably, something crops up at work that becomes
entangled in her marriage crisis. She is asked for an emergency
court order: a teenage Jehovah's Witness is refusing the blood
transfusion that would save his life. Visiting him in hospital, she
is touched by the boy's beauty and unusual gifts he has written
Blakean poetry and plays the violin for her, while she sings
along. The scene around his hospital bed feels more like a
tableau or an allegory than like believable life, and the boy is
more like an emblem than a real boy: " his defining quality was
innocence, a fresh and excitable innocence, a childlike openness
". Fiona Maye makes her judgment, which we are not given in
its entirety, but at several pages' length. "This has been no easy
matter to resolve. I have given due weight to A's age, to the
respect due to faith, and to the dignity of the individual
embedded in the right to refuse treatment " And her decision
has consequences, which throw her into confusion and selfdoubt perhaps mirroring her husband's confusion. The
separation which has always seemed straightforward, between
her private self and her public function as an instrument of
impartial law, begins to break down.
This ought to be rich subject matter. The problem is the novel's
prose seems not so much to imitate the flow of Fiona's
experience, as to offer a fairly pedestrian summary. When Jack
comes back from his failed adventure, all we learn is that once
he arrived at the other woman's flat he "felt stupidly obliged to
go on with what he had started". "And the more trapped I felt,
the more I realised what an idiot I was to risk everything we
have, everything we've made together, this love that" to Jack's
credit, he breaks off there or Fiona walks out on his
explanation. Of course his words are paltry and inadequate the
words we say to each other often are. And we expect the
novelist to do the rest of the work, to toil to represent in
language all that the protagonists can't say for themselves
about their ageing, their stale intimacy, their childlessness, the
death of their desire, their enduring love and about how the
vulnerable private body intersects with the powerful public
persona. In fact, what we want are "strange differences, special
7

pleading, intimate half-truths, exotic accusation fine-grained

particularities of circumstance"; but we don't get them. There
are some sharp descriptions of the couple's "tense prowling
around each other", but mostly the account is as flat as if Fiona
were writing it herself. "Then it came to her plainly what she felt
about Jack's return. So simple. It was disappointment that he
had not stayed away. Just a little longer. Nothing more than that.
Disappointment."
It's not saying anything new to point out that McEwan uses some
heavy engineering to bring about the moral climax of his
dramas; there's much clanking and bumping of the scenery as
the novel proceeds and the setup is wheeled into place behind
the curtain. Realism seems beside the point after a while: it's
more like being inside the workings of an allegory or a parable.
At least this time there's no magical whisking away of the
narrative rug from under our feet at the last moment, as
in Atonement or Sweet Tooth. In fact, the closing paragraphs of
the novel are tender and serious. And the climax is more
palatable than in Saturday, where the god-like doctor defeated
his brutish enemy with the aid of poetry, and then saved his life
too which really did seem like having it all ways. No doubt
there was some irony intended. The power of poetry and music
are invoked again in The Children Act, but in this novel they
work with more subtlety. Rather than boosting the lawyer's
confidence in her authority, they seem to shadow and erode it
as the story unfolds.
Tessa Hadley's latest book is Clever Girl (Vintage). To
order The Children Act for 13.59 with free UK p&p call Guardian
book service on 0330 333 6846 or go to
guardianbookshop.co.uk.

http://www.theguardian.com/books/2014/sep/11/the-children-act-ian-mcewanreview-novel

The Children Act by Ian McEwan

review a masterly balance
between research and imagination
Ian McEwan's 13th novel, about a beleaguered high court judge,
is his best since On Chesil Beach
Robert McCrum talks to Ian McEwan
As one begins an Ian McEwan novel this is his 13th one feels
an immediate pleasure in returning to prose of uncommon
clarity, unshowiness and control. I was going to add that it's
marvellous to feel you are in a safe pair of hands only safe is
something McEwan has never been. This is the best novel he
has written since On Chesil Beach (2007), and a return to form
after Solar (2010), the novel about climate change that was
somehow blighted by its disagreeable protagonist, and his
recent underpowered espionage novel Sweet Tooth (2012).
The Children Act opens with what resemble comprehensive
stage directions Bernard Shaw would have approved. We're in
the London home of Fiona Maye, a high court judge on a Sunday
evening. Props include an unlit fireplace, a round walnut table, a
blue vase and "a tiny Renoir lithograph of a bather, bought by
her thirty years ago for 50 pounds. Probably a fake." That
"probably a fake" is typical McEwan. He leads us in one
direction, then points us in another. And what one especially
prizes is this ability to turn on his heel, change everything within
a sentence or a well-placed word. From the start of this masterly
novel, there is a larger sense, as Fiona lies on her chaise longue,
that an elegantly established equilibrium is about to be rocked
his other work, if nothing else, makes one sure of it.
There are two reasons for Fiona's instability. Her 30-year
marriage is in trouble: her husband has told her he must have an
affair before he dies. She finds his honest infidelity an
insufferable provocation. At the same time, in her pressurised
job as a judge in the family courts, a case has got under her
9

skin. Adam is a beautiful, intelligent, wayward 17-year-old with

leukaemia whose parents are Jehovah's Witnesses refusing, on
religious grounds, to let him have the blood transfusion needed
to save his life. He appears to agree with his parents' position.
Just as in Saturday (2005), where McEwan had learned enough
about neuroscience to put on a surgeon's scrubs, here he has
studied family law extensively (acknowledgements indicate that
much legal advice was sought). It is as though he wanted to
discover how he might have fared in another high-powered
profession. And while trying lives out for size is what every
novelist does, McEwan has prepared almost as if for an exam.
One cannot help thinking he could have been an ace family
lawyer, with his forensic intelligence and command of moral
nuance. He echoes legal language plausibly too, and is deft in
his journalistic ability (another missed career?) to weave debate
into the narrative (passing references to Syria and the Leveson
inquiry situate us in time).
But this is not journalism, and the novel raises questions about
how imagination and research coexist. In its most moving
chapter, McEwan throws away all his legal notes as Fiona, in an
independent move, heads off to visit Adam in a hospital wittily
likened to "a modern airport. With altered destinations." The
scene is marvellous precisely because it borders on the
unbelievable, rises confidently above the ordinary, confounds
expectation. When Adam plays his beginner's violin and Fiona
sings by his hospital bed, the feeling is of freedom. The warmth
of the scene arises partly, one supposes, out of the coldness of
Fiona's domestic affairs. And the sad song speaks to everyone.
It's a scene that is a triumph of imagination over research.
The portrait of Fiona's marriage is also hugely enjoyable. Not a
detail escapes McEwan. Even the way a cup of coffee is steered
across a table can be telling: a peace offering. They have no
children but take "multi-generational holidays in the cheaper
sort of castle". Jack is a 59-year-old bohemian academic who
goes barefoot in summer. At one point he is described as having
"padded in for an argument" which made me laugh aloud. Fiona
sees herself as being "in the infancy of old age". She
10

knows Antony and Cleopatra off by heart, having played

Enobarbus as a law student in an amateur production in
Lincoln's Inn Fields, and her crisp comments on her rival, a 28year-old statistician, have something of Cleopatra's dismissive
concision ("Dull of tongue, and dwarfish"). Her rival is "a silent
young woman with heavy amber beads and a taste for the kind
of stilettos that could wreck an old wooden floor". Any potential
for more extensive damage needs no further spelling out.
Fiona's unhappy private life serves as a helplessly ironic subtext
to her professional decisions. She remarks that there is "no
denying the relief at being delivered on to the neutral ground,
the treeless heath of other peoples' problems". And it's one of
the achievements of the novel that it never confines itself to a
single unhappiness, but fans outwards into collective family
sorrow. Fiona comes to this conclusion: "Kindness, the Family
Division daily proved, was the essential human ingredient." Yet,
as McEwan keeps showing, kindness is complicated. He keeps us
tensely guessing everything hingeing on Fiona's decision about
the boy. And it will not spoil the plot to say that this is a novel
which, above all, considers what it might mean to be saved
and not in the queasy sense in which Jehovah's witnesses have
claimed the word.
The Children Act is published by Cape (16.99). Click here to
buy it for 13.59 with free UK p&p
http://www.theguardian.com/books/2014/sep/07/the-children-act-review-ianmcewan-masterly

11

Ian McEwan
Ian McEwan: the law versus religious belief
The conjoined twins who would die without medical intervention, a boy who
refused blood transfusions on religious grounds The novelist on the stories
from the family courts that inspired his latest book
Podcast: Ian McEwan on The Children Act
Video: Ian McEwan on religion in the 21st century
Video: Ian McEwan on Ashya King

'The family division is rooted in the same ground as fiction,

where all of lifes vital interests lie' Ian McEwan. Photograph:
Karen Robinson
Ian McEwan
Friday 5 September 2014 16.00 BSTLast modified on Thursday
28 January 201622.23 GMT
Some years ago I found myself at dinner with a handful of
judges a bench is the collective noun. They were talking shop,
and I was politely resisting the urge to take notes. The
conversation was exotic in content, rather familiar in form. There
was a fair amount of banter, of chuckling and teasing as they
recalled certain of each other's judgments. They quoted wellturned phrases and fondly remembered ingenious conclusions.
Clearly, they read each other closely. They may have been a
little harder on the judgments of those not present. How easily, I
thought at the time, this bench could be mistaken for a group of
novelists discussing each other's work, reserving harsher
strictures for those foolish enough to be absent.
12

At one point, our host, Sir Alan Ward, an appeal court judge,
wanting to settle some mild disagreement, got up and reached
from a shelf a bound volume of his own judgments. An hour
later, when we had left the table for coffee, that book lay open
on my lap. It was the prose that struck me first. Clean, precise,
delicious. Serious, of course, compassionate at points, but
lurking within its intelligence was something like humour, or wit,
derived perhaps from its godly distance, which in turn reminded
me of a novelist's omniscience. I continued to note the parallels
between our professions, for these judgments were like short
stories, or novellas; the background to some dispute or dilemma
crisply summarised, characters drawn with quick strokes, the
story distributed across several points of view and, towards its
end, some sympathy extended towards those whom, ultimately,
the narrative would not favour.
These were not cases in the criminal courts, where it must be
decided beyond reasonable doubt whether a man is a villain or
the unlucky victim of the Crown Prosecution Service. Nothing so
black and white, nothing so noir or pulp. These stories were in
the family division, where much of ordinary life's serious
interests lie: love and marriage, and then the end of both,
fortunes querulously divided, the bitterly contested destinies of
children, parental cruelty and neglect, deathbed issues,
medicine and disease, religious or moral disputes complicating
matrimonial breakdown.
The choices for a judge are often limited to the lesser harm
rather than the greater good. When mother and father cannot
agree, the court reluctantly assumes the role of the "judicial
reasonable parent". Here, in my lap, were realistically conceived
characters moving through plausible, riveting situations, raising
complex ethical questions. If these judgments had been fiction,
they would have belonged in the tradition of moral exploration
that includes Jane Austen, Leo Tolstoy, George Eliot, Henry
James, Joseph Conrad.
Then I came across an arresting sentence. It was in the opening
paragraphs of a judgment in the court of appeal in 2000
concerning baby conjoined twins.Untreated, both would die.
13

Separated, the weaker must perish, for it had a failing heart,

virtually no brain and "no lungs to cry with". Only its healthier
sibling kept it alive by way of their shared circulatory system.
And slowly, the weak baby was sapping the strength of the
strong. The hospital wanted to operate to save the viable child,
but surgery would involve deliberately killing its twin by severing
an aorta. The parents objected for religious reasons: God gave
life; only God could take it away. Public interest was intense.
On the face of it, a simple moral premise: one rescued and
flourishing child is better than two dead. But how was the law to
sanction murder, and set aside the insistence of the parents,
endorsed by the then Roman Catholic Archbishop of
Westminster, that both children should be left to die?

Appeal court judge Sir Alan Ward. Photograph: Johnny Green/PA

In his introductory remarks Ward had offered a reminder to the
general public: "This court is a court of law, not of morals, and
our task has been to find, and our duty is then to apply, the
relevant principles of law to the situation before us a situation
which is unique."
What is lawful is not always identical to what is right. Sometimes
it falls to a judge to align the two. Ward's judgment runs to more
than 80 closely typed pages. It is beautifully written, delicate
and humane, philosophically astute, ethically sensitive and
scholarly, with a wide range of historical and legal references.
The best of judgments, as I was to discover, are similarly
endowed. They form a neglected subgenre of our literature, read
14

in their entirety by almost no one except law students and

fellow judges. And in the family division particularly, they
present a hoard of personal drama and moral complexity. They
are on fiction's terrain, even though they are bound, unlike the
fortunate novelist, to a world of real people and must deliver a
verdict.
But as we all know, verdicts, indeed the whole system, can also
be asinine tough, even tragic, for its innocent victims, grimly
fascinating for the novelist. For the obvious is true, the law is
human and flawed. Just like newspapers or medicine or the
internet, it embodies all that is brilliant and awful about
humankind.
One of the sorriest and most sustained judicial errors in modern
times was in the case of Sally Clark, the solicitor, two of whose
children died of cot death. She was charged with their murder.
The jury appeared impressed by some breathtaking statistical
nonsense from one medical witness. Various other experts
disagreed with each other profoundly about the causes of death,
but the court showed no appropriate caution and she was found
guilty. The tabloids "monstered" her, in jail she was horribly
bullied, her appeal was turned down. By her second appeal it
was apparent that a pathologist had withheld vital evidence
about a fatal bacterial infection in one of Clark's children and
finally she was released. But by then a few years had passed
and the ordeal had broken her. A bereaved mother, brave and
decent, harried by the legal system like a figure in a Kafka story,
persecuted like Job, she lost her life to depression and drink.

15

Solicitor Sally Clark with her husband outside the high court.
She was freed after her conviction for the murder of her two
baby sons was ruled unsafe by the court of appeal. Photograph:
Dan Chung for the Guardian
The Guildford Four and Maguire Seven, the Birmingham Six a
brief search on the internet will show that the list of less famous
victims of miscarriages of justice in the courts is vast. And these
are only the cases that have been successfully appealed. Then
there are those that attract baffling lenience: a cyclist who rode
extremely fast on the pavement and killed a 17-year-old
pedestrian was ordered to pay a fine, and avoided jail. Or the
punishment is weirdly harsh: a young man of my close
acquaintance was caught by CCTV cameras on the edge of a
pub brawl. He hurt no one, though he did manage to receive a
split lip. On a "joint enterprise" basis, he was punished for
offences committed by others, and for which the police hadn't
even charged him. He is currently serving a two and half year
sentence. And he was lucky the prosecution was pushing for
five to nine years. When I showed the case to a recently retired
and very senior member of the judiciary, he was dismissive: "Not
even worth a suspended sentence."
My young friend was often locked in his cell 23 hours a day in
the Isis prison at Thamesmead, an institution that boasts "a
broad-based curriculum that supports academic achievement,
vocational training" etc. He lost his freedom for the grievous
bodily harm the court accepted he did not inflict. Other
mitigating factors, including previous wrongful imprisonment,
were not addressed in the summing up. Had he been listed to
appear before another judge, he might be enjoying the company
of his partner and their baby, who was born just before he was
sent down. As Kurt Vonnegut might have murmured as my friend
was led away, so it goes.
Despite sentencing guidelines, there can be no consistency in
the courts, unless everyone stands before the same eventempered judge, as at the Day of Judgment. Perhaps this was
always part of Christianity's appeal. Until that last trump, down
here in the earthly courts brilliance and fairness must live
16

alongside dull injustice. In the criminal courts neither jury nor

judge are permitted to conclude that something might have
happened. It either did or did not. Mistakes therefore are wired
into the system. In the family division judges often make moral
choices. Lord Hoffmann put the best face on it when he wrote,
"These are value judgments on which reasonable people may
differ. Since judges are also people, this means that some
degree of diversity in their application of values is inevitable."
It follows that the judge and his or her character, moral sense,
background, mood swings and attention span (one judge was
recently reported to have fallen asleep while hearing evidence)
have great consequence for the destinies of those who come
before them. But the vast and rich fiction that has grown up
around the law has been mostly fascinated by criminals and
their victims, and the criminals' antagonists in the form of cops,
private eyes and attorneys. Crime fiction as a genre has such
sustained and wide popularity that it has become, inevitably,
sclerotic with conventions. Fictional crime victims (of rape, of
murder) are most often very beautiful young women. The
investigating cop is expected to have a deeply flawed character
and a disastrous private life. One follows less often, in fiction or
on TV, the happily married detective of steady temperament
pursuing the killer of a fat old geezer with bad breath.
Judges have not entirely escaped fictional invention. Apart from
God himself and Judge Dredd (both so careless of due process)
one eminent figure is Lewis Carroll's Queen of Hearts, whose
multiple sentences of instant beheading are quietly reversed by
her husband, the king, though he becomes less lenient and far
more erratic as judge at the trial of the Knave of Hearts. As John
Mortimer's Rumpole famously noted, a court is a blunt
instrument to get at the truth.
Just as religion and religious passion and disputes have
pervaded domestic and international politics to an extent we
could not have predicted 20 years ago, so they have vigorously
entered, or re-entered, the private realm, and therefore the
family courts. In the case of the conjoined twins, Ward ruled
against the parents and for the hospital. But it was, as the nice
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legal term has it, "an anxious question". The operation went
ahead, the weaker baby died (or, as the then Archbishop of
Westminster might have put it, was judicially murdered), while
its sibling underwent extensive reconstructive surgery and
flourished.
This was a high-profile case. Elsewhere, the family law reports
are littered with routine disputes over the religious upbringing of
children. Divorcing parents find themselves with irreconcilable
differences over which "truth" their children are to be raised in.
A Jehovah's Witness mother, opposed to Christmas celebrations
because of their pagan origins, withdraws her child from the
school nativity play on religious grounds. Her estranged Anglican
husband objects. A Saudi father wants to remove his daughter
from the jurisdiction to his homeland, where she will be brought
up in his Muslim faith. The mother, a Catholic, brings a court
action but too late. An orthodox Hasidic father wants his
children raised within his close community, without access to TV,
the internet, pop music and fashion, and to leave school at 16.
His less devout Jewish ex-wife will fight him to the end for the
souls of their children.
Complex issue of religious freedom and child welfare bring these
cases to the high court and beyond, to the court of appeal.
Reluctantly, at a snail's pace, the law gets involved in the
minutiae of daily arrangements the sort of arrangements that
couples in love could settle in seconds. Judgments in the family
division tend to genuflect politely before the religious devotion
of the parties, before arriving at decisions on non-religious
grounds. Inevitably, there are differences in moral perspectives.
Is this life less important than the afterlife? The law doesn't think
so. Does God abhor homosexuality and abortion? Parliament has
decided these issues and the courts must fulfil its will. Is it right
to punish those who reject their own religion? The criminal
courts must punish the punishers.
After a judge has heard out the warring parties and comes to
settle the destinies of the children, the guiding principle will be
the opening lines of the Children Act, 1989. "When a court
determines any question with respect to the upbringing of a
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child the child's welfare shall be the court's paramount

consideration." If this sounds like a tautology, it's a useful one;
the needs and interests of the parents or their gods are
secondary to the interests of the child. If the act raises the
question of what a definition of welfare should be, then a judge
ought to be able to provide one in the role of "judicial reasonable
parent".
Three years after my supper with that bench of judges, Ward
told me of a Jehovah's Witness case he had once presided over.
At the time he was doing his turn as duty judge, ready at the
end of a phone, nights and weekends, to deal with emergency
applications to the court. One came late in the evening from a
hospital looking for permission to transfuse a Jehovah's Witness
teenager against his and his parents' wishes. The boy was
suffering from a form of leukaemia that was relatively easy to
cure. The drugs the doctors wanted to use would compromise
his already declining blood count. The medical staff were fiercely
opposed to losing a patient they thought they could cure. The
matter was urgent. Within a short time, the various parties, their
representatives and expert witnesses assembled in the Royal
Courts of Justice to present evidence and argument to the judge.

The Royal Courts of Justice in London, which houses the court of

appeal. Photograph: Graham Turner for the Guardian
A considerable distance in worldviews between secular law and
supernatural belief is exposed in cases involving Jehovah's
Witnesses and blood transfusion, especially where a child is
concerned. And in this context, a child is anyone under 18. In
law, the closer he gets to that age, the more his wishes have to
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be taken into account. Here is another anxious question. To

refuse medical treatment for oneself is understood in law to be a
fundamental right. A doctor who treats a patient against his will
is committing criminal assault.
For Jehovah's Witnesses, the matter is simpler, though fraught
with sacrifice and pain. The Bible is the word of God. His
interdictions against blood transfusion are set out in Genesis,
Leviticus and Acts. If the religion's Governing Body in Brooklyn
("the slaves") did not advise the worldwide followers ("the other
sheep") against transfusion until 1945, it's because God prefers
to reveal his wishes gradually and obliquely. As one Witness
pointed out recently on my doorstep, the truth about blood was
always waiting to be discovered. To the glib assertion that
transfusion was not a feature of iron age therapies, any other
sheep will be able to cite one of the relevant verses: "Only flesh
with its life, its blood, you must not eat." (Genesis 9:4). Pointless,
it turns out, arguing over the verb.
In the case of the five-year-old Ashya King, the knowledge that
his parents were Jehovah's Witnesses may just possibly have
prompted the confused, overheated responses of the
Southampton hospital and police, and the CPS. The religion does
not forbid its members sophisticated medical treatment and, as
far as we know, in this sad and tangled affair blood transfusion is
not at issue.

Brett and Naghmeh King, parents of five year old Ashya King,
hold a press conference in Seville, Spain. Photograph: Denis
Doyle/Getty Images
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But when it is, the matter often comes before a judge as a

matter of life and death. Hospitals need a rapid decision. Even if
the "child" is within a week of his 18th birthday, has his parents'
backing, clearly knows his own mind and would rather die than
be transfused, the act directs the court to the only proper
decision. The paramount consideration is clear: no child's
welfare is served by being martyred for his religion.
Many hospitals have devised elaborate means to accommodate
the faithful with "bloodless surgery". Some Witnesses are
prepared to trim by accepting their own recycled blood or
certain blood products. But tragedies occur. The law exists to set
and live by boundaries. One moment past its 18th birthday,
the child is no more and is beyond the court's protection.
To embrace death, or allow one's child to die, for a questionable
reading of certain biblical dietary restrictions will seem to most a
pointless pursuit of grief. To die for one's beliefs is not always
noble, and sincerity is not necessarily a virtue. For an extreme
example, recall the 9/11 attackers, and all the gullible,
murderous suicide bombers that followed. Most of us, even
Christians, now struggle to understand those 16th-century
martyrs who chose to be burned at the stake rather than yield
on finer points of Protestant or Catholic dogma.
We prefer to think we are remote and well defended from such
sacrifice. But there are always exceptions we might make, as
long as we are brave enough. Some scales of moral value, some
sacrifices, are superior, more meaningful, than others. We
honour the parent who drowns while rescuing a child, as we do
the men and women who gave their lives liberating Europe from
Nazi barbarity. That in turn summons the complicating memory
of the many Jehovah's Witnesses who were rounded up in the
Third Reich's death camps and offered their freedom if they
would renounce their pacifism. They always chose to die.
Back in the days when Ward was hearing his blood transfusion
case, it was still possible for him to make a minor a ward of
court. At some point in the proceedings he decided to go and
meet his ward in person a clear instance of the personality of
21

the judge determining the course of a case. He suspended

proceedings, crossed London in a taxi, met the loving, anxious
parents, then sat at the boy's hospital bedside for an hour.
Among many other things, they talked about football, which was
the lad's passion. Later that evening, the judge returned to the
Courts of Justice to give his decision. He "set aside" his ward's
and the parents' articulately expressed refusal of a blood
transfusion and ruled for the hospital. The child's welfare was his
paramount consideration.

Some Jehovah's Witnesses are prepared to accept certain blood

products. Photograph: Martin Argles for the Guardian
Months later, Ward took the boy (now in good health) and his
father to a football match, which they watched from the
directors' box. The young man was able to meet his football
heroes. The gleam of joy in his eyes, his excitement at being
alive, was a sight the judge would never forget. The court's
decision was vindicated. But the story did not end there. A few
years later the young Witness was readmitted to hospital and
needed another blood transfusion. By then, he was old enough
to make an independent decision. He refused treatment and
died for his beliefs.
Contemplating this tragedy one can only guess at the sorrow,
the parents' thwarted love, the powerful sense of destiny they
shared with their son, and all the defeated arguments of the
court, the desolation of the nursing staff and the waste. The
character of the judge, who was so compassionately and
rationally intent on a good outcome, seemed inseparable from
the story. When I heard it, I remembered my earlier impression
22

the family division is rooted in the same ground as fiction, where

all of life's vital interests lie. With the luxury of withholding
judgment, a novel could interpose itself here, reinvent the
characters and circumstances, and begin to investigate an
encounter between love and belief, between the secular spirit of
the law and sincerely held faith.
Podcast: Ian McEwan on The Children Act
Video: Ian McEwan on religion in the 21st century
Video: Ian McEwan on Ashya King
The Children Act by Ian McEwan is published by Jonathan
Cape. To order a copy for 13.59 with free UK p&p call Guardian
book service on 0330 333 6846 or go
to guardianbookshop.co.uk.

23

Lord Justice Munby calls for further opening up of the family

courts

ALC Hershman-Levy Memorial Lecture analyses reform of public and press

access to family proceedings
Lord Justice Munby delivered last week's Hershman-Levy Memorial Lecture on
'Lost Opportunities: Law and Transparency in the Family Courts', hosted by the
Association of Lawyers for Children.
The full transcript of the lecture is available on the ALC website. Lord Justice
Munby analysed what is wrong with the current law with regard to access to the
courts and what remains wrong with it despite the recent changes.
After reviewing the current law, he concluded:
"[B]oth principle and pragmatism demand that we open the family courts, that
we drastically relax the present access restrictions.
"But affording access to the family courts is not alone enough. The answer, if I
may be permitted to adopt the former Lord Chancellor's language, is that we
need both more people going into the family courts and more information
coming out. Each of these is essential; neither alone is sufficient."
Munby LJ called for more judgments to be made available to the public:
"I am not talking merely about judgments which are thought to be reportable
because of their perceived legal interest. Releasing for publication only those
judgments which are 'reportable' means that the public obtains a seriously
skewed impression of the system. What one might call 'routine' judgments in
'ordinary' care cases and private law cases should surely also be published all
of them, unless, in the particular case, there is good reason not to. The second
point leads on from the first. It is not only High Court judgments that should be
published in this way. Why should not County Court judgments also be
published?
The second step must surely be to revisit section 12 of the [Administration of
Justice Act 1960]. Publication of judgments is, I believe, necessary but of itself
it will not necessarily suffice. After all, a judgment contains what a judge has
decided to include in it, and someone may wish to argue in a public arena,
relying for this purpose upon matters not recorded in the judgment, that, for
example, the expert evidence was flawed, that the judge misunderstood the
evidence, or that if the judge had had access to other information the outcome
might have been different. Section 12 which, to repeat, fails to protect the
anonymity which most would endorse is in other respects surely far too
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restrictive. Is it not time to make a fresh start? Perhaps to abandon section 12

altogether and start again? If that approach is thought to be too radical, would
it not be preferable to re-cast section 12 so that it defined a much more limited
and focussed list of materials that could not be disseminated without the prior
permission of the court?"
He described pilot schemes that were underway in respect of the provision of
written judgments when a final order is made in certain family cases.
Lord Justice Munby explained his misgivings concerning Part 2 of the Children,
Schools and Families Act 2010. In respect of the legislation and other recent
and proposed reforms, he posed the question:
"Do the reforms which have taken place meet the criteria I have set out? Do
they even meet the criteria identified by their architect? My answer to each
question can only be a saddened and regretful No!"

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Why dont the family courts obey the law?

Too many cases are standing the fundamental principles of British
justice on their head, writes Christopher Booker

Lord Justice Munby, head of family courts Photo: BRIAN SMITH

By Christopher Booker
7:04PM GMT 14 Feb 2015

For two years, Lord Justice Munby, the head of our family courts, has
been heroically fighting to restore some semblance of justice and
common sense to our horribly secretive and corrupted child protection
system, which I have been reporting on here since 2009 as one of the
most shocking scandals in Britain today.
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Two weeks ago, Munby again made headlines when he and two other
judges in the Appeal Court magisterially tore apart a Liverpool judge,
Robert Dodds, for his handling of a case-management hearing involving
an intelligent boy, described as an over-achiever at school, who was
desperate to return to live with his mother.
In 2012, Liverpool social workers sent the boy to live with his abusive
father, who was sent to jail for assaulting him. They then placed him
miserably in 14 different foster homes. The social workers were now
considering that it might be best for him to return to his mother. But
Dodds refused to hear any evidence and, without issuing a formal
judgment or even giving his reasons, instantly ordered that the boy must
remain in care.

After highly critical rulings from the other two judges, Munby weighed in
by saying that he wished to emphasise two important points. The first
was that it is one of the oldest principles of our law, going back 400
years, that no one is to be condemned unheard. Any parent faced
with the removal of their child must be entitled to make their case to the
court; and if they wish to give evidence in answer to a local authoritys
care application, they must be permitted to do so. Secondly there is
the right to confront ones accusers, and to cross-examine any
important witness on whose evidence the local authority is relying. Judge
Doddss adoption of such a ruthlessly truncated process in this case
was fundamentally unprincipled and unfair.
Just when Munby was making these points another case came my way
which, as so often in the family courts, stood those fundamental
principles on their head. A woman in Wales, after being made pregnant
from a rape, lived for some years with the father, who continued to treat
her so violently that she eventually fled with her son to a womens
refuge. They then began living happily with a new partner by whom she
had two more sons. Because of her past involvement in violence,
however, Denbighshire social workers intervened to say that, unless she
handed over her oldest son to his father, they would also remove her
other two boys. She had no choice but to obey.

27

When the middle son was two, his mother took him to her doctor to look
at a small bruise, which he said was nothing to worry about. But, on
learning of this, the social workers insisted that the boy be examined by
another doctor, who said that the injury might be non-accidental, i.e. a
sign of parental abuse. On a court order, the two boys were taken into
care, and over the following months, through several court hearings
from which the parents were excluded by their lawyers, they were
shocked at contact sessions to see both the boys displaying many cuts
and bruises (which they photographed).

Last April, the couple were summoned to a final hearing to decide their
sons future. The mother was represented by lawyers she had been
given by Womens Aid, which works closely with the local authority. As
an intelligent woman, studying for a university degree, she and her
partner arrived early at the court, for what was scheduled to be a fiveday hearing. They were armed with files of evidence and a list of
witnesses they wished to call, all of which they believed would demolish
the local authoritys case.
But the mother describes how they were astonished to be told by their
lawyers that again they would not be permitted to enter the court. Half
an hour later, the barristers emerged to say that the judge had decided
that their two boys should be placed for adoption. There was no
judgment for them to see, and no possibility of any appeal against his
decision. This Wednesday the couple will have a final goodbye session
with their sons, never to see them again.
What makes this even odder is that two months later the same judge,
Gareth Jones, made national headlines for ruling that Anglesey social
workers acted above the law in removing a nine-year-old boy from his
family without a court order. This judge is clearly capable of upholding
the law when he sees social workers acting improperly. But, since we
cannot know what happened in his other courtroom weeks earlier, we
cannot know how a planned five-day hearing came to be cut to just 30
minutes; or why those lawyers told the parents that they were not
allowed even to enter the court, let alone to give evidence. We can only
surmise what Lord Justice Munby might say were he given the chance to
pronounce on a case that seems so flagrantly to have flouted those
28

same fundamental rights under the law that he was recently so insistent
must be upheld.

29