Reviewed by Paul Magrath
Ian McEwan’s latest novel, The Children Act, is named after a statute; and the story it tells is about a High Court judge. But its true purpose seems to be to provide a literary appreciation of the art of writing judgments.
Not just any old judgments, though. For McEwan seems particularly interested in cases involving conflicts between legal rights and religious obligations. Thus, at the heart of this book is a case involving a teenage boy with leukaemia who will die unless his doctors are permitted to give him the blood transfusion which he and his parents nevertheless refuse because it conflicts with their faith as devout Jehovah’s Witnesses.
Hence the significance of the Children Act 1998, section 1(1) of which provides:
When a court determines any question with respect to—
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.
Meet the judge
The case comes before Fiona Maye, a High Court judge who sits in the Family Division. Her professional life is dedicated to resolving the problems thrown up by family breakdown and childcare disputes. But, as the novel begins, it is her own marriage that seems under threat, as her academic husband of 30 years tries to explain his sudden urge to go off with a pretty young statistician before he gets too old to enjoy one last fling.
The fact that he’s even talking about it before doing it is what we in the law would call putting the cart before the horse. But you could also see it as an ironic travesty of court procedure, a sort of application for interim relief. (Either way, it’s an unconvincing scene for reasons that aren’t entirely literary.)
This prompted me to wonder whether the heroine’s marital problem was really anything more than a device, an ironic counterweight along the lines of that hoary old proverb about physicians healing themselves. (Dividing and ruling by day: rudely divided at night.) And it’s not just this aspect of the story that seems in some ways a bit mechanical. There’s all the stuff about Fiona Maye’s musical skill as a pianist, the lovely flat in Gray’s Inn, the paintings on her wall and the poetry in her bookcase. There’s an off-the-shelfness about these background details, which were no doubt intended to make her seem sensitive and cultured, a person whose processes of legal reasoning would be worthy of investigation, but which have the unfortunate consequence of making her seem a bit idealised, and somehow remote from the rough and tumble of ordinary life.
All of which tempts me to suppose that the real reason for writing this novel was not to describe the character of a High Court judge, or chart her pilgrimage through the crisis in her life and work with which the narrative purports to deal, but rather for McEwan to have an excuse to try his hand at writing judgments. And, as noted above, the judgments he seems particularly interested in are those involving the conflict between law and religion. But it would appear that, in doing so, he has closely followed what might be termed (in more than one sense of the word) precedents.
Read the cases
So, as the novel opens, we find Maye J reading proofs of a law report in a case involving the education of the daughters of a divorced orthodox Jewish couple. Her reasoning in this case so closely matches that of Sir James Munby P’s judgment in In re G (Children: Religious upbringing)  EWCA Civ 1233;  1 FLR 677;  WLR (D) 265, as to render Fiona Maye’s version little more than a palimpsest. So slavish is the copying, indeed, that he even has her quoting from the same authorities, and in the same order (Lord Hoffmann in Piglowska v Piglowski  1 WLR 1360, 1373; Lord Hailsham LC in In re B (A Minor) (Wardship: Sterilisation) AC 199, 202; Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions)  2 FLR 124, 129, and Lindley LJ in In re McGrath (Infants)  1 Ch 143, 148) though crucially – and in a betrayal of his failure to understand how judicial consideration actually works – without citing the cases or their references, just name dropping the judges.
We then hear in flashback about an earlier judgment of hers in a case about conjoined twins that largely follows the reasoning of Ward LJ (sitting with Brooke and Robert Walker LJJ in the Court of Appeal) In re A (Children) (Conjoined Twins: Surgical Separation)  Fam 147, CA. The main departue here is that McEwan, somewhat politically incorrectly, refers to them throughout as “Siamese twins”.
At the heart of the book, though, is that case about the teenage boy with Leukaemia who will die unless he receives the blood transfusion that both he and his parents refuse on religious grounds. Should the court intervene (applying the overriding principle of section 1 of the eponymous Children Act) to protect the child and preserve his life? This case, again, seems substantially based on Re E (A Minor) (Wardship: Medical treatment)  1 FLR 386, even down to the quotation of Lord Scarman’s formulation, in Gillick v West Norfolk and Wisbech Area Health Authority  AC 112, 188H-189;  1 FLR 224, 253, of the ability of a child under 16 to consent to medical treatment (subsequently known as “Gillick competence”). Given that the child in this case is nearly 18, Carl Gardner in his review of this novel has questioned the relevance of Gillick competence in this case, but it is clearly something that captured McEwan’s imagination, since he makes quite a play of it here.
To be fair, McEwan alludes to these borrowings in his acknowledgements, and has made no secret of his interest in judgments as a form of literature. He said as much in interviews given at the time of publication, such as the oddly self-laudatory profile written by Camilla Cavendish for the Sunday Times. (See also his own discussion of the novel in The Guardian, under the title The law versus religious belief. )
Regardless of his true intentions, has McEwan in reworking these cases succeeded in getting inside the mind of his fictional High Court judge?
I think not, though his effort is honestly attempted and earnestly undertaken. There’s almost a tribute-band eagerness about his efforts, and like most tribute bands he copies the substance while somehow failing to capture the essence.
The problem is that the judge he has conjured up seems really more like an academic than a practitioner; someone focussed on ideas, and to some extent the causes and consequences of problems addressed by those ideas, but with almost no apparent experience of process or what one might call everyday (or “down and dirty”) lawyering.
This has probably come about because, although he has met judges and practitioners and spent time in court (not least in his own divorce case), his touchstone in the creation of this novel has been the refined product of the judicial mind, ie the judgment. He has used two or three first class examples of High Court or Court of Appeal judgments (cited above), and perhaps referred to others. He has also viewed these in terms of the personalities that created them, as though they were the product of a High Table discussion in an Oxbridge college, rather than an attempt to address issues raised in the course of proceedings in a courtroom. In other words, to use literary allusions, they reek of Founders’ Port rather than Chateau Thames Embankment. What he should have done, or done more of, or paid more attention to, was the activities of the lawyers and their clients in and outside the courtroom.
The result is an oddly down-looking view of the law, a view from the ivory tower of pure intellectual reason, rather than the tradesman’s entrance view of the law with which most judges, having begun their careers as trainee barristers or solicitors, and having fought their way up the rungs of promotion, are familiar. For this is the real point about English judges, and those of some (but I suspect not all) common law jurisdictions. They begin as practitioners, and forge their view of the law in the thick of the everyday jousting of courtroom battles. They suffer losses and defeats, with weary stoicism, and rejoice over gains which they cannot sincerely claim as the fruits of their own brilliance. It’s often said, you never win a case: you just benefit from the fact that the other side lost.
In short, for all Fiona Maye’s 30-year marriage and glittering appointment, one gets no sense of a practical legal hinterland out of which the genius of her judgments might have grown. So in the end, what one is left with is a rather artificial story in the course of which we are shown the summarised content of a number of quite interesting judgments. But for a lay reader who might wish to know more about these cases, perhaps it would have been better to have read an essay by McEwan, discussing the cases, and expressing his thoughts about them, and then to read the judgments, in full, oneself.
A contribution to the public domain
If that is not possible, that is at least partly because the older ones are not currently in the public domain, since they pre-date what might be called the Age of BAILII. That is something ICLR intends to address. We recognise that there are, among the thousands of cases in our legacy archive of case law going back to 1865, a handful or two of wider public and historical interest. We propose in the next few months to begin a process of making those cases available to the wider public whose interest and curiosity justifies releasing them into the public domain in this way. Watch this website for an announcement sometime soon.
In the meantime, what are we to conclude about this novel? For someone wanting to know what the business of judging is like, it offers a partial picture. The way the judgments are presented in the novel is not particularly authentic, but the decision making process is probably as accurate as one could expect from someone looking in from the outside. Reading legal novels generally, it is very noticeable which authors are insiders (John Mortimer being an obvious example, Peter Murphy another more recent one) and which are not. But a lay reader would not notice the tiny points of deviation which might irritate the insider; and McEwan has in the past not been afraid to tackle scientific subjects with an amateur’s enthusiasm in a way that may well have made professional readers wince and frown. He should take his chances and not worry. Of more concern, however, is the way the book structures itself around a creakingly artificial pairing of extra-marital relationships. I don’t want to spoil the novel for anyone who wants to enjoy it purely for its plot (though as McEwan plots go it is reassuringly straightforward, with none of the trick-twist effrontery of, say, Atonement or Sweet Tooth). So I shall say no more.